Allahabad High Court
Rajdeep Sardesai And Others vs State Of U.P. And Anr. on 3 July, 2014
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD 'AFR' 'RESERVED' Case :- APPLICATION U/S 482 No. - 2830 of 2012 Applicant :- Rajdeep Sardesai And Others Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Shyamal Narian, G.S.Chaturvedi, Mrinal Bharti, Swetashwa Agarwal Counsel for Opposite Party :- Govt. Advocate, Anoop Trivedi Hon'ble Manoj Misra, J.
1. The instant application, under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Code'), has been filed seeking setting aside /quashing of the order dated 07.07.2008 whereby the Court of Judicial Magistrate, Court No.1, Ghaziabad took cognizance on the complaint preferred by the opposite party No.2, which is registered as Complaint Case No. 6177 of 2008. The applicants have also sought quashing of the order dated 14.12.2011 by which the Court of Special Judicial Magistrate (C.B.I.), Ghaziabad summoned the applicants under Section 500 I.P.C. in connection with the said complaint.
2. The relevant facts of the case are that the opposite party No.2 (Dr. Ajay Agarwal - the complainant), claiming himself to be a registered medical practitioner, filed a complaint alleging therein that between 29th July, 2006 to 3rd August, 2006 a manipulated video clip was shown by IBN-7 (T.V. Channel) suggesting a sting operation revealing involvement of the complainant in amputating persons to make them beggars. According to the complainant, the video clip was doctored, contained false allegations and it lowered his reputation in the society. The complainant alleged that consequent to the telecast, various inquiries were set up at various levels. The Ethics Committee, set up by the U.P. Medical Council, which inquired into the matter reported that there was no material to substantiate the allegations of any unethical conduct on the part of the complainant and, subsequently, the Medical Council of India also, on the basis of reports obtained by it, came to the same conclusion. The complainant further alleged that the High Court had entertained a petition, bearing Writ Petition No. 74150 of 2005, on allegations made in the T.V. programme, in which notices were issued to the complainant and after a response from the complainant, upon being satisfied with regards to the falsity of the allegations made against the complainant, the notices were discharged and the writ petition was disposed of. The complainant alleged that he had filed a complaint before the Ministry of Information and Broadcasting against the channel for violation of the "programme code", as visualized under Section 5 of the Cable Television Networks, Act, 1995, on which an enquiry was held and, as a result of which, the Ministry directed the concerned T.V. Channel to broadcast an apology for showing false and defamatory material. It was alleged in paragraph 16 of the complaint that the doctored C.D., which was broadcast by the T.V. Channel, was prepared by one Jamshed Khan, Chief Investigator (DIG) and was let to be aired by accused no.1 knowing that the allegations were false. It was alleged that the report of the programme was also widely published in newspapers thereby severely damaging complainant's reputation in the society. In paragraph 19 of the complaint it was stated that the accused are officers/ employees in the said T.V. Channel, holding various posts, and that they are all supposed to permit transmission of a programme only when they satisfy themselves with regards to correctness of its content. It has also been alleged therein that the accused have failed to discharge their responsibility. With the aforesaid allegations, the complaint was filed for drawing proceeding against the accused under Section 500 IPC. The persons arrayed as accused in the complaint, were the applicant No.1-Rajdeep Sardesai, shown as Editor-in-Chief of CNN-IBN; the applicant No.2 - Ashutosh shown as Managing Editor - IBN-7 and Managing Director-Channel-18; the applicant No.3- Raghav Bahl shown as Director, CNN-IBN; Jamshed Khan (a non-applicant) shown as Chief Investigator (DIG); the applicant No.4 - Arunodey Mukherji shown as an employee of CNN-IBN; Neeti Tandon (a non-applicant) shown as an employee of CNN-IBN; the applicant No.5 - Sanjay Ray Chaudhuri - shown as Executive Director, Channel-18, T.V. 18 India Ltd.; the applicant No.6 - Harsh Chawla shown as an employee of T.V. 18 India Ltd.; and the applicant No.7 - Sameer Manchanda shown as Managing Director of Global Broadcasting News - GBN Indian Television Dot Com Pvt. Ltd. Along with the complaint, several documents were enclosed disclosing that a programme by the title of "Shaitan Doctor" was shown in T.V. Channel IBN-7 making allegations that the doctors including the complainant were involved in amputating persons for making them beggars. Documents also disclosed that inquiries at various levels were held in which it was found that the information aired/ published including the sting operation was not substantiated by evidence.
3. A perusal of the order sheet, which is on record as Annexure 1 to the application, reveals that the aforesaid complaint was filed on 07.07.2008 and on that very day the statement of the complainant was recorded under Section 200 Cr.P.C. Further, as the complainant stated that he was not willing to examine any other witness, a date was fixed for hearing on the question of summoning the accused. Thereafter, on 01.08.2008, the Court of Judicial Magistrate, Ghaziabad summoned the accused under Section 500 I.P.C. Against the summoning order dated 01.08.2008, the accused preferred revision No. 341 of 2009 in the court of Additional Sessions Judge, Court No.11, Ghaziabad, which was allowed by order dated 28.01.2011 whereby the summoning order dated 01.08.2008 was set aside on ground that the learned Magistrate while passing the summoning order had placed reliance on copy of various documents, which were not admissible and therefore the matter required reconsideration by the Court of Magistrate for passing a fresh order after taking into consideration the original of the documents. Pursuant to the order of remand, the learned Magistrate took the original of the documents into consideration and passed a fresh summoning order dated 14.12.2011, which has been impugned in the present application.
4. I have heard Sri Gopal Chaturvedi, learned senior counsel, assisted by Sri Mrinal Bharti and Sri Swetashwa Agarwal for the applicants; Sri Anoop Trivedi for the complainant; and the learned A.G.A. for the State.
5. The learned counsel for the applicants submitted as follows:
(i) That to constitute an offence of defamation, as per Explanation IV to Section 499 IPC, the alleged defamatory imputation must harm a person's reputation in the estimation of others. To substantiate that the reputation of the complainant has fallen in the estimation of others, a witness other than the complainant must be examined to show that on account of the alleged imputation his estimate of the person, against whom the imputation was made, has fallen. As, in the instant case, the complainant did not examine any person, other than himself, in support of the complaint case to substantiate that his reputation was lowered in the estimation of others, on account of the imputation made/published by the accused, no case to proceed against the applicants is made out.
(ii) That according to the complaint allegations, the doctored C.D., which was aired by the Channel IBN-7 was prepared by one Jamshed Khan (a non-applicant) and that there is no allegation to show that all the accused persons were in collusion or in conspiracy with Jamshed Khan in either preparing the false C.D. or were culpably responsible in publishing or broadcasting the defamatory material. Mere allegation that all the accused persons are office-bearers in the Broadcasting Company and that they failed in their responsibility of checking that false information is not published/ disseminated through their channel, is not sufficient to infer their culpability in the publication/dissemination of the defamatory material aired in the Channel, particularly in absence of any provision fastening vicarious liability on them. Even otherwise there can be no vicarious liability in criminal law unless it is specifically provided by statute. The Indian Penal Code provides for vicarious liability only in cases where it can be shown that there was a common intention amongst the perpetrators of the crime or that the accused constituted an unlawful assembly or that they had been in collusion or in conspiracy with each other. As no such allegations have been made in the complaint, the summoning of the accused persons only on ground that they had been office-bearers, holding various positions in the Broadcasting Company or in the concerned Channel, cannot be legally sustained. Therefore, issuance of process against the office-bearers of the Company without there being any material to show their culpability/ involvement /collusion in the preparation / broadcasting of the defamatory programme, is not legally sustainable.
(iii) That in absence of any supporting evidence either in the form of a statement of the complainant, recorded under Section 200 CrPC, or in the form of a statement of a witness, recorded under Section 202 CrPC, even if there be some allegations in the complaint with regards to the holding of various positions by the accused persons in the Company as also with regards to their having been involved in running the affairs of the Company /Channel, issuance of process to them is not legally sustainable because there has to be some legal evidence to support the allegations which, either can be obtained through an inquiry, under section 200 or 202 CrPC, or through an investigation conducted on a direction under Section 202 CrPC. As the statement of the complainant, recorded under section 200 CrPC, is completely silent with regards to the culpability of the applicants, there is no legal evidence to substantiate the allegations, if any, so as to justify the summoning of the applicants.
6. In support of the first submission, the learned counsel for the applicant placed reliance on a decision of the Madras High Court in the case of J. Jayalalitha v. Arcot N. Veerasamy : 1997 Cr LJ 4585 wherein it has been held that to make out a prima facie case to proceed for an offence punishable under section 500 read with section 499 IPC, as per Explanation IV to section 499 there must be an allegation in the complaint and sworn statement in support thereof that because of the imputation the reputation has been lowered in the estimation of others. To support the second submission, the learned counsel for the applicants placed reliance on the decisions of the Apex Court in the case of S.K. Alagh v. State of Uttar Pradesh and others : (2008) 5 SCC 662; Maksud Saiyed v. State of Gujarat and others : (2008) 5 SCC 668; Keki Hormusji Gharda and others v. Mehervan Rustom Irani and another : (2009) 6 SCC 475; GHCL Employees Stock Option Trust v. India Infoline Limited : (2013) 4 SCC 505 as also on a decision of the Madras High Court in the case of Sanjay Pinto and Radhika Iyer v. A. Kamaraj : 2012 (2) CTC 352= MANU/TN/4998/2011.
7. In support of the third submission that for issuance of process against the accused a prima facie case should not only be made out from the complaint allegations but also from the statement recorded in support thereof, either under section 200 or 202 Cr.P.C., the learned counsel for the applicants placed reliance on decisions of the Apex Court in the case of Nirmaljit Singh Hoon v. State of West Bengal : (1973) 3 SCC 753; and Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others : (1976) 3 SCC 736 as also on certain observations made in a recent Constitution Bench decision of the apex court in the case of Hardeep Singh v. State of Punjab : (2014) 3 SCC 92.
8. In reply to the above submissions, Sri Anoop Trivedi, learned counsel for the complainant, submitted that the complaint allegations and the various reports that were produced along with the complaint do suggest that a programme was aired in the television channel IBN-7 by the title of "Shaitan Doctor" indicating that the doctor (the complainant herein), under the influence of Mafia, was amputating persons for making them beggars. Referring to paragraphs 4, 6, 7, 8 and 18 of the complaint as also to the statement of the complainant recorded under section 200 CrPC, the learned counsel for the complainant submitted that there were clear allegations that on account of the false imputation his reputation had fallen in the estimate of others and that he had to face various protests from different organizations, etc. It was submitted that the very nature of the allegations made in the programme were such that it would lower the reputation of a person in the estimation of others, therefore, the statement of a third party to that effect was not required. Moreover, Explanation IV does not require examination of another person to prove that the imputation concerned lowered the reputation of the complainant in the estimation of others. It only provides that no imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral character of other person, or lowers the character of other person in respect of his caste or of his calling or lowers the credit of that person or causes it be believed that the body of that person is in a loathsome state or any state generally concerned as disgraceful. It was submitted that an imputation made with regards to a doctor that he is indulging in amputation of limbs of persons, under influence of the mafia, for making them beggars, by its very nature, is such that it harms a person's reputation in the estimation of others in the sense that it lowers the moral character of that person as also the character in respect of his calling. Thus, in the circumstances of the case recording of statement of another person to show that on account of such imputation, the reputation of the complainant was lowered in his estimate, was not necessary.
9. In reply to the second submission of the learned counsel for the applicants, Sri Anoop Trivedi, learned counsel for the complainant, invited attention of the Court to paragraphs 16 and 19 of the complaint. In paragraph 16 of the complaint, it has been alleged that the accused had knowingly let the false and fabricated programme, prepared by the accused No.4 (Jamshed Khan - the non-applicant), be shown on IBN-7 Channel. In paragraph 19 of the complaint it has been alleged that the accused persons are holding different positions of responsibility in the News Channel and are responsible for ascertaining correctness of the news item and that they had been guilty of not exercising their responsibility. Relying on the aforesaid allegations, it was submitted that apart from specific allegation against accused No.4 (Jamshed Khan) of creation of a false / doctored C.D., there were allegations against all the accused persons of being responsible in broadcast of the programme and hence they cannot escape from their liability. Relying on the decision of the Apex Court in the case of Gambhirsinh R. Dekare v. Falgunbhai Chimanbhai Patel & Anr. : 2013 (3) SCC 697 it was submitted that editors have to take responsibility of everything they publish and to maintain the integrity of published record. It was submitted that the complaint discloses accused no.1 as an Editor and the accused no.2 as a Managing Editor, therefore, it has to be presumed that they were responsible for the publication of the offending article and, as such, prima facie, guilty for the offence of defamation. It was submitted that it is for them to appear before the Court and plead that the news item published was without their knowledge /connivance and since, at this stage, only a prima facie case is to be seen, the process issued against them cannot be faulted.
10. Sri Anoop Trivedi also placed reliance on a decision of the Apex Court in the case of K.M. Mathew v. K.A. Abraham and others : (2002) 6 SCC 670 wherein, in paragraph 16 of the report, it was observed that there is no statutory immunity for the Managing Editor or Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which those persons exercise control. Reliance was also placed on another decision of the Apex Court in the case of In Re: Harijai Singh and another & In Re: Vijay Kumar : (1996) 6 SCC 466 wherein it was observed, in paragraph 11 of the report, that an editor is a person who controls the selection of the matter which is to be published in a particular issue of the newspaper and that the editor and publisher are liable for illegal and false matter which is published in their newspaper. It was submitted that as the applicant No.1 is an Editor of the News Channel and the applicant No.2 its Managing Editor, they cannot escape from their responsibility for publishing the defamatory material.
11. With regards to the third submission of the learned counsel for the applicants, Sri Anoop Trivedi, learned counsel for the complainant, submitted that as there are clear allegations in the complaint disclosing the complicity of the persons arrayed as accused, even if specific allegations have not been made against them in the statement recorded under Section 200 of the Code of Criminal Procedure, it cannot be said that a prima facie case is not made out so as to proceed against them, inasmuch as, guilt is to be dermined on the basis of the evidence led during the course of trial, whereas, at this stage it is only an inquiry to ascertain whether a prima facie case has been made out to proceed against the accused or not. It was submitted that since from the allegations made in the complaint and the statement recorded under section 200 Cr.P.C., as also the documents produced in support thereof, it is established that a defamatory material was published in the Channel, owned and controlled by the accused persons and that the defamatory material was found to be false by various investigating agencies, a prima facie case is made out for drawing proceeding against the accused and therefore the summoning order cannot be said to be illegal in any manner, accordingly, the application deserves rejection.
12. Having noticed the rival submissions of the learned counsel for the parties, before proceeding to assess the weight of respective submissions it would be useful to first examine whether the complaint allegations disclose commission of an offence of defamation or not. The complaint, which has been brought on record as Annexure No.10 to the affidavit filed in support of the application, alleges that at the time when the complainant was posted in district Gautam Budh Nagar as an Orthopaedic Surgeon, on IBN-7 Channel, between 29.07.2006 to 03.08.2006, an alleged sting operation was televised showing that the complainant has been amputating limbs of persons to make them beggars. It has been alleged that the contents of the programme were false and the C.D. containing the programme was fabricated by accused no.4 (Jamshed Khan). It was alleged that the contents of the programme were also reported in newspapers. It was alleged that on account of broadcast of the programme, the reputation of the complainant was tarnished. It was alleged that on account of the false imputations, various social organizations protested and sought arrest of the complainant and even raided his house thereby causing damage to the property. It has also been alleged that because of the false allegations, the reputation of the complainant has fallen in the estimate of others including his neighbours who, because of the imputations, have been extending taunts at him. It has also been alleged that because of the false imputations, the complainant was deprived of the opportunity of being considered for award of "Padamshree". Apart from that he was made to suffer several inquiries, which caused immense loss of reputation in the estimate of public in general. The complaint alleges that the allegation made in the programme was absolutely false and fabricated and various inquiries in respect of its veracity revealed that the allegation was baseless. In paragraph 16 it has been alleged that the complainant suffered loss of reputation because of the accused. In the said paragraph it has further been alleged that accused no.1, in conspiracy with accused no.4, knowing that the allegations were completely false had let the programme been televised in IBN-7 Channel. In paragraph 19 of the complaint, it has been alleged that the accused persons are office- bearers in the news channel holding different positions of responsibility and the programmes are to be aired only after ascertaining the truth of the news but the accused persons have failed to exercise their responsibility which has resulted in loss of reputation of the complainant in the estimate of others. It has been alleged that a complaint was made by the complainant to the Ministry of Information and Broadcasting, on which an inquiry was conducted and it was found that the channel showed false defamatory material and as such was required to tender apology but, despite orders of the Ministry, the channel failed to tender apology. With the above allegations, the complainant prayed that proceeding be drawn against the accused for offence punishable under section 500 I.P.C. The documents which have been filed by the complainant along with the complaint have been brought on record by the complainant through his counter-affidavit. Amongst various documents, Annexure C.A-1 reveals that the contents of the sting operation were posted in the website of the channel i.e. IBN Live.Com. At page 38 of the counter-affidavit, the contents of the sting operation, as uploaded in the website, have been brought on record which discloses that the information was uploaded on the basis of inputs received from Chief Investigator (DIG)-Jamshed Khan, and CNN-IBN- Neeti Tandon and Rohit Khanna. These three persons are not applicants before this Court though Jamshed Khan and Neeti Tandon have been arrayed as accused nos.4 and 6 respectively in the complaint. Documents have also been enclosed to show that authenticity of the news item was investigated by various agencies and the correctness of the allegations as shown in the news item could not be substantiated. Documents have also been enclosed to show that the Ministry of Information and Broadcasting had required the channel to tender apology by its order dated 03.01.2008.
13. From the complaint allegations and the documents that have been enclosed, particularly the order dated 03.01.2008 issued by the Ministry of Information and Broadcasting which has been brought on record at page 65 of the affidavit filed in support of the application, it appears that the offending programme "Shaitan Doctor" was televised in Channel IBN-7 and the said channel was warned by Ministry of Information and Broadcasting for violating the "programme code" by televising news item "Shaitan Doctor", which depicted the complainant in poor light. Further, the channel IBN-7 was required to apologize. Thus, from the complaint allegations and documents in support thereof as well as the statement recorded under section 200 CrPC, it is clear that an offending news item by the name of "Shaitan Doctor" disclosing that the complainant was involved in amputating persons for making them beggars was televised in Channel IBN-7; that the contents of the programme were not found to be correct by various agencies; and that according to the complainant his reputation was lowered in the estimate of others on account of broadcast of the said programme. Accordingly, a bare perusal of the complaint do, prima facie, disclose commission of an offence of defamation as defined in Section 499 IPC and punishable under Section 500 IPC, therefore, the order taking cognizance on the complaint cannot be faulted.
14. The question that now arises for determination is whether from the complaint allegations and the statement recorded in support thereof, under section 200 CrPC, as also the documents brought on record, can it be said that there was sufficient ground for proceeding against all the accused i.e. the applicants herein.
15. At this stage, it would be useful to examine the provisions of the Code as also the law in that regard. Sub section (1) of Section 202 of the Code, as amended by Act No.25 of 2005, w.e.f. 23.06.2006, provides that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. In Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753, in paragraph 22 of the report, it was observed that the object of examination of the complainant and the witnesses under sections 200 and 202 of the Code is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. In Nagawwa v. V.S. Konjalgi, (1976) 3 SCC 736, the Apex Court, in paragraph 5 of the report, observed that in a case where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence, which is alleged against the accused, an order of the Magistrate issuing process against the accused can be quashed or set aside.
16. In the case of National Bank of Oman v. Barakara Abdul Aziz : (2013) 2 SCC 488, the apex court had the occasion to deal with the effect of the amendment brought to sub section (1) of Section 202 of the Code, by Act No.25 of 2005. In the judgment the notes on clauses for the said amendment were noticed, which are reproduced herein below: "False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused." In Udai Shankar Awasthi v. State of U.P., (2013) 2 SCC 435, the apex court, in paragraph 40 of the report, observed that the provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. It was observed that the postponement of issuance of process was found necessary to protect innocent persons from being harassed by unscrupulous persons and, therefore, it is obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.
17. From the law noticed above, it is thus clear that the Magistrate, before summoning the accused residing beyond his jurisdiction, shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. Further, the Magistrate, before issuance of process, has to draw satisfaction, on the basis of the enquiry as contemplated by sections 200 or 202 of the Code or an investigation, if directed under sub section (1) of section 202 of the Code, whether or not there is sufficient ground to proceed against the accused. Such inquiry or investigation is of significance because there may be a case where the complaint may disclose that an offence has been committed, but the inquiry or investigation may not reveal complicity of any particular person to enable the Court to proceed against him. Therefore, when process is issued to a person, the inquiry or investigation must make out a prima facie case to proceed against such person.
18. Coming to the instant case, according to the complaint allegations, the accused nos.1, 2, 7, 8 and 9 reside beyond the territorial jurisdiction of the Magistrate concerned. Accordingly, before issuance of process it was obligatory on the Magistrate to carry out an inquiry so as to find out whether or not, there was sufficient ground for proceeding against the accused. Thus, what is now to be determined is whether from the enquiry held by the Magistrate sufficient material has been found to proceed against the accused or not.
19. In this regard it would be useful to notice certain facts elicited from the record. In paragraph 5 of the affidavit filed in support of the application, it is stated that the applicant No.1- Rajdeep Sardesai is the Editor-in-Chief of CNN-IBN. This statement made in paragraph 5, as aforesaid, has not been denied in the counter-affidavit. Likewise, in a legal notice dated 11.11.2006 (annexure 4 to the affidavit filed in support of the application), which was sent on behalf of the complainant by one Chandra Prakash, Advocate, the applicant No.1-Rajdeep Sardesai has been described as Editor-in-Chief of CNN-IBN. The correctness of the document, which has been enclosed as Annexure No.4, has not been denied or disputed in the counter-affidavit. Further, from the averments made in the complaint and in the statement made in support thereof, recorded under Section 200 Cr.P.C., it is not clear whether the applicant No.1-Rajdeep Sardesai was an Editor-in-Chief / Editor of IBN-7 channel where, allegedly, the offending news item was televised. Although, in the statement recorded under Section 200 Cr.P.C., it has been alleged that the offending programme was televised in both the channels i.e. IBN-7 and CNN-IBN, but from the documents, which have been brought on record in the shape of various enquiry reports as also the order of the Ministry of Information and Broadcasting, it does not appear that the programme was televised in CNN-IBN also. In paragraph 4 of the complaint, it has been specifically stated that the programme was televised in IBN-7 channel from 29.07.2006 to 03.08.2006. It is noteworthy that accused No.1- Rajdeep Sardesai has been impleaded by describing him as an Editor-in-Chief of CNN-IBN. There is no specific allegation in the statement recorded under Section 200 Cr.P.C. with regards to the role of various accused in the publication / televising of the offending programme. In fact there is no evidence whatsoever with regards to the role played by each accused in the televising/ publication of the offending programme. The statement recorded under Section 200 Cr.P.C. only discloses that the offending programme containing false and defamatory imputations was televised and that various reports, subsequently obtained, disclosed that the imputations were false. The statement recorded under Section 200 Cr.P.C. though discloses that the Ministry of Information and Broadcasting had required the channel to tender an apology which they did not, despite the order of the Ministry, but it fails to disclose the specific role, which each accused (except accused no.4-Jamshed, who is not an applicant herein) played in the alleged creation and publication of the defamatory material.
20. Reverting to the submissions of the learned counsel for the applicants, the submission that as no independent witness was examined by the complainant under Section 202 of the Code to show that complainant's reputation fell in his estimate therefore no offence punishable under section 500 IPC read with Section 499 IPC could be said to be made out, is not acceptable, because Explanation IV of Section 499 of the Indian Penal Code provides for the nature of the material which could be considered defamatory and not the mode by which it has to be proved. Explanation IV does not provide for a mandatory examination of a third party to substantiate that the material published was defamatory or not. It is for the Court, on independent assessment of the evidence, to come to a conclusion whether the alleged imputation would lower a person's reputation in the estimate of others or not. In the instant case, the imputation was made against a doctor (the complainant) that he was indulging, in collusion with Mafia, in amputating the limbs of persons for making them beggars. Such an allegation when made against a doctor would in ordinary course lower his reputation in respect of his calling in the estimation of others. Moreover, the complainant has, in the complaint as well as in his statement recorded under section 200 of the Code, alleged that his reputation has taken a hit because of the offending broadcast and that there were demonstrations, etc. against him. Accordingly, in the facts of the case, non-examination of an independent person is not fatal for proving that the alleged imputation had lowered the reputation of the complainant in the estimation of others.
21. So far as the second and third submission of the learned counsel for the applicants are concerned they challenge the validity of the summoning of the applicants, hence they are being considered together. In the complaint, it is alleged that the fabricated C.D was prepared by one Jamshed Khan (accused no.4). In paragraph 3 of the complaint it has been alleged that the offending programme was shown in IBN-7 channel. Though in paragraph 19 of the complaint it has been vaguely alleged that all the accused persons are holding various positions in the news channel but in the statement recorded under Section 200 of the Code, it has not been stated as to how those various accused persons were involved/ responsible for the broadcast of the item which is alleged to be defamatory. Mere mentioning in the title of the complaint that such and such accused is an editor, director, managing director, etc. would not be sufficient to infer culpability of that person. The decisions which have been cited by the learned counsel for the complainant so as to contend that an editor is responsible for the item which is published are all in relation to the print media where the provisions of Section 7 of the Press and Registration of Books Act, 1867 (in short, Press Act) are attracted. Section 7 of the Press Act provides that: "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 declarations, 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."
22. Section 1 of the Press Act defines "Editor". According to it "Editor" means the person who controls the selection of the matter that is published in a newspaper. Section 5(1) of the Press Act provides that no newspaper shall be published in India, except in conformity with the rules hereinafter laid down. Sub-section (1) of section 5 of the Press Act provides that without prejudice to the provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication. Thus, in view of clear and specific provisions of the Press Act, a person whose name is printed as an Editor in the Newspaper, so published, would be deemed to be the publisher of every portion of the newspaper unless he proves to the contrary. So far as the broadcast of the channels in the cable television network/ electronic media is concerned the provisions of the Cable Television Networks (Regulation) Act, 1995 (in short Cable T.V. Act) are attracted. Accordingly, the responsibility of an editor of a T.V. channel cannot be fixed by taking recourse to the provisions of the Press Act.
23. According to Section 5 of the Cable T.V. Act no person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code. Section 2(a-ii) of the Cable TV Act defines "Broadcaster" as a person or a group of persons, or body corporate, or any organisation or body providing programming services and includes his or its authorised distribution agencies. Section 2(g) of Cable T.V. Act provides that a "programme" means any television broadcast and includes- (i) exhibition of films, features, dramas, advertisements and serials; (ii) any audio or visual or audio-visual live performance or presentation. Section 2(f) of the Cable T.V. Act provides that "prescribed" means prescribed by rules made under the Act. Under the Cable T. V. Ordinance, 1994, Cable Television Networks Rules, 1994 have been notified, which continue to remain in force after the enactment. Rule 6 of the Cable Television Networks Rules, 1994 provides for the "programme code". Rule 6 (1) (d) of the Rules provide that no programme should be carried in the cable service which contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half-truths. Section 16 of the Cable T. V. Act provides for punishment for contravention of provisions of the Act. Section 17 provides that where an offence under the Cable T.V. Act has been committed by a company, every person who, at the time the offence was committed, was in-charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Clause (a) of the Explanation to Section 17 of the Cable T.V. Act provides that "Company" means any body corporate and includes a firm or other association of individuals. Section 18 of the Cable T.V. Act provides that no court shall take cognizance of any offence punishable under that Act except upon a compliant in writing made by any authorised officer.
24. The Cable T.V. Act as well as the Rules framed thereunder do not provide for definition of an Editor of any channel. In fact, the term "Editor" is conspicuous by its absence in the Cable Television Networks (Regulation) Act, 1995 as well as the Rules framed thereunder. Whether the definition of an Editor as given in the Press Act as also the provisions of Section 7 of the Press Act can be invoked for drawing proceedings against an Editor of a T.V. Channel under the provisions of the Indian Penal Code for broadcast of a defamatory material, is a question which requires determination.
25. The Press Act is an Act for the regulation of a printing press and newspapers for the preservation of copies, books and newspapers printed in India and for the registration of such books and newspapers. The said Act clearly relates to the print media and does not relate to the broadcasting (electronic) media. Cable T.V. Act, 1995 was enacted as "an Act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto". The statement of object and reasons for the enactment as given in the Prefatory Note are as follows:- "There has been a haphazard mushrooming of cable television networks all over the country during the last few years as a result of the availability of signals of foreign television networks via satellites. This has been perceived as a "cultural invasion" in many quarters since the programmes available on these satellite channels are predominantly western and totally alien to our culture and way of life. Since there is no regulation of these cable television networks, lot of undesirable programmes and advertisements are becoming available to the viewers without any kind of censorship. 2. It is also felt that the subscribers of these cable television networks, the programmers and the cable operators themselves are not aware of their rights, responsibilities and obligations in respect of the quality of service, technical as well as content-wise, use of material protected by copyright, exhibition of uncertified films, protection of subscribers from anti-national broadcasts from sources inimical to our national interest, responsiveness to the genuine grievances of the subscribers and a perceived willingness to operate within the broad framework of the laws of the land, e.g., the Cinematograph Act, 1952, the Copyright Act, 1957, Indecent Representation of Women (Prohibition) Act, 1986. 3. It is therefore, considered necessary to regulate the operation of cable television networks in the entire country so as to bring about uniformity in their operation. It will thus enable the optimal exploitation of this technology which has the potential of making available to the subscribers a vast pool of information and entertainment.
26. There is no provision in the Cable T.V. Act adopting any of the definitions given in the Press Act. There is also no adoption of the provisions of Section 7 of the Press Act. The punishment under the Cable T.V. Act is provided for contravention of the provisions of that Act and not for violation of the provisions of any other enactment or law. Although Section 17 of the Cable T.V. Act provides that where an offence has been committed by a company, every person who, at the time the offence was committed, was in-charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly, but, it is applicable only to the offences punishable under that Act and not under the Indian Penal Code. Therefore, merely because a person is alleged to be a director or an editor or an employee of a Company which is involved in the broadcasting of a T.V. Programme, cannot be held responsible for defamation on account of broadcast of defamatory material unless it is shown that the said person is responsible for making / publication of the defamatory material.
27. In the case of G.N. Verma v. State of Jharkhand and Anr. : 2014 (4) SCC 282 it was observed by the apex court that for fastening criminal liability on an officer of a Company, there is no presumption that every officer of a Company knows about the transaction in question. It was observed that the averment made in the complaint to the effect that at the relevant stage the accused was Chief General Manager/Deemed Agent and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the rules, regulations, orders made thereunder were not sufficient to fasten vicarious liability upon an officer of a Company, in absence of any specific allegation with regards to his role in running the colliery and as to how and in what manner he was incharge or was responsible to the colliery for the conduct of its business. In Aparna A. Shah v. Sheth Developers (P) Ltd. : 2013 (8) SCC 71 relying on earlier decision of the apex court in the case of S.K. Alagh v. State of Uttar Pradesh and others : (2008) 5 SCC 662, it was observed that there is no vicarious liability in criminal law unless the statute takes that also within its fold. It was observed that the normal rule in the cases involving criminal liability is against vicarious liability. No one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in statutes extending liability to others. Similar view has been expressed in the case of S.K. Alagh (supra).
28. In the case of Maharashtra State Electricity Distribution Comp. Ltd. vs Datar Switchgear Ltd. : 2010 (10) SCC 479, the Apex Court observed that one cannot draw a presumption that a Chairman of a Company is responsible for act committed on behalf of the Company. Likewise, in Keki Hormusji Gharda and others v. Mehervan Rustom Irani and another : (2009) 6 SCC 475, it has been observed that the Indian Penal Code, save and except some matters, does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices.
29. In the light of the discussion made above, considering the fact that in the statement made by the complainant, recorded under Section 200 of the Code, as also in the complaint, there is no specific allegation with regards to the role played by the applicants in making or publication of the defamatory material as against the complainant, the issuance of process against the applicants by virtue of they being office holders / position holders in the Broadcasting Company/ news channel that is, by invoking the principle of vicarious liability, is neither legally justified nor sustainable in law.
30. The submission of the learned counsel for the complainant that as in the complaint it has been averred that the broadcast of a programme cannot be undertaken without permission and editing by the accused persons, therefore, a prima facie case has been made out to proceed against them cannot be accepted in absence of specific allegations disclosing the role of the individual accused in preparation/ broadcast of a programme. It is noteworthy that this is not a prosecution under the provisions of the Cable Television Networks (Regulation) Act, 1995 wherein, by virtue of section 17, all the officers in charge of and responsible for the conduct of business of a Company can be held liable. For prosecution under the provisions of Indian Penal Code, the principle of vicarious liability can not be invoked. To proceed against an accused under the Indian Penal Code, there should be allegation disclosing his involvement in the act which constitutes an offence. In the instant case, there are no specific allegations against the applicants with regards to their involvement in making / publication of the defamatory material, particularly when considered along with the statement recorded under section 200 of Code. Accordingly, the issuance of process to the applicants cannot be sustained.
31. In view of the discussion made above, the application is partly allowed. The summoning order dated 14.12.2011 passed by the Court of Special Judicial Magistrate (C.B.I.), Ghaziabad in Complaint Case No. 6177 of 2008 to the extent it summons the applicants is set aside. The order dated 07.07.2008, taking cognizance on the complaint, is maintained. The interim order stands discharged. There is no order as to costs. It is made clear that by this order the summoning of non- applicants Jamshed Khan and Neeti Tandon, who are also accused and have been summoned, has not been set aside.
Order Date :- 03.7.2014 Sunil Kr Tiwari