Delhi High Court
Bhaichung Bhutia vs Soumik Dutta & Ors. on 26 August, 2014
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: August 26, 2014
+ CS(OS) No.2504/2014
BHAICHUNG BHUTIA ..... Plaintiff
Through Mr.Anand Grover, Sr. Adv. with
Mr.Saurabh Chauhan, Mr.Varun
Jain and Mr.Mihir Samson, Advs.
versus
SOUMIK DUTTA & ORS ..... Defendants
Through None.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
I.A. No. 15724/2014 Exemption allowed, subject to all just exceptions. The application is disposed of.
CS(OS) 2504/2014 & I.A. No. 15723/2014 (u/O XXXIX R 1 & 2 CPC)
1. Let the plaint be registered as a suit.
2. Issue summons in the suit and notice in the application to the defendants, on filing of process fee and registered AD covers within one week, returnable on 29th September, 2014. Dasti in addition.
3. The plaintiff has filed the suit for permanent injunction and for damages.
4. The case of the plaintiff is that the plaintiff was the captain of the Indian National Football team. It is stated in the plaint that the CS(OS) No.2504/2014 Page 1 of 10 plaintiff has been awarded the 'Arjuna' award for football in 1998 and the 'Padma Shri' in 2008. He retired from playing football at the national and international levels in August, 2011.
5. It is stated in the plaint that since his retirement, the plaintiff has established the Bhaichung Bhutia Football Schools through Talent Invigoration and Sports Management Pvt. Ltd. of which he is a Director. The Bhaichung Bhutia Football Schools has 8 training centres in Delhi/NCR and a number of other centres across India. The plaintiff is also the Chairman, Technical Committee, All India Football Federation and co-founder and co-owner of the United Sikkim Football Club which participates in the National Football League. The plaintiff has a reputation as an honest footballer and promoter of the game with utmost integrity all over India, more particularly in Delhi and Sikkim. The plaintiff has also joined a political party, the Trinamool Congress and contested 2014 Lok Sabha Elections from Darjeeling.
6. The case of the plaintiff against the defendants is that the defendant No.1 is a reporter covering news in the North East working with the United News of India. The defendant No.2 is an individual who is publishing and circulating defamatory, concocted and malicious information about the plaintiff. The defendants No.3 to 5 jointly own and operate a website called Facebook on which the defamatory article was published. The defendant No.6 is the owner and publisher of the Sikkim Reporter, a newspaper having considerable circulation in the State of Sikkim. The defendant No.7 is CS(OS) No.2504/2014 Page 2 of 10 the Editor of Sikkim Reporter. The defendant No.8 is the printer of the Sikkim Reporter.
7. It is averred in the plaint that on 18th April, 2014, the defendant No.1 published an article, by sending it to journals, media houses and newspapers across the country, including Delhi, which was per se grossly defamatory to the plaintiff. In the said article it was stated that a group of individuals, including the defendant No.2, had circulated a communiqué making certain statements against the plaintiff. The details of the statements/allegations have been given in para 5 of the plaint.
8. It is further averred that on 22nd April, 2014, the plaintiff found that the defendants No.6 to 8 prominently published the said article written by the defendant No.1 through their Facebook account on their Facebook page which was published by the defendants No.3 to 5, who own and operate the said website. The plaintiff subsequently came to know that the said defamatory article was in fact published by the defendants No.6 to 8 on 18th April, 2014. The same is still being published on the Facebook accounts and accessible by anybody and everybody in India. The defendants did not verify the authenticity of the defamatory statements with the plaintiff prior to publishing them. After the publishing of the defamatory imputations by the defendants, a number of colleagues of the plaintiff as well as associates, peers and family members approached the plaintiff and question him about the imputations made against the plaintiff by them. On 28th April, 2014, the plaintiff sent a notice to the defendants setting out the correct facts and calling on them to forthwith remove CS(OS) No.2504/2014 Page 3 of 10 the said defamatory article, issue an apology to the plaintiff and pay a sum of Rs.1 crore for the damages caused to his reputation.
9. The defendants No.1 and 2 jointly replied by letter received by the plaintiff on 2nd May, 2014 wherein it was admitted that there was absolutely no basis for the assertions in the said defamatory article and in fact termed by them as "investigative queries" which were purportedly to allow the plaintiff to share relevant information and clarify "any doubts". The defendant No.5 also replied by letter dated 5th May, 2014 and said that it does not control or operate the concerned website i.e. www.facebook.com, rather the same is done by defendants No.3 and 4.
10. Mr.Grover, learned Senior counsel appearing on behalf of the plaintiff, has argued that the defendants made per grossly defamatory imputations against the plaintiff without any foundation or basis, recklessly and maliciously pursuant to a conspiracy to defame the plaintiff. They even did not bother to verify the facts with the plaintiff. They have defamed the plaintiff only with a view to undermine the plaintiff's credibility amongst his peers, family, friends and the public at large, for which they are jointly and severally liable. He states that the availability of the said defamatory article is tarnishing the reputation of the plaintiff in the public.
11. His argument is that statement made in the said defamatory article is unarguably defamatory and there are no grounds for concluding that the statement may be true. He argues that if the interim order is not passed, irreparable loss and injury would be caused to the high esteem of the plaintiff not only on national level CS(OS) No.2504/2014 Page 4 of 10 but also on international level, as the same cannot be compensated in terms of money. In support of his submissions for granting interim injunction, he has referred to Gatley on Libel and Slander (10th Edition). In para 25.2 of the same, it is stated:
"Thus the Court will only grant in interim injunction:
(1) the statement is unarguably defamatory; (2) there are no grounds for concluding the statement may be true;
(3) there is no other defence which might succeed; (4) there is evidence of an intention to repeat or publish the defamatory statement."
12. Mr.Grover, learned Senior counsel appearing on behalf of the plaintiff, has referred to various paras of the plaint as well as documents placed on record. Mr.Grover has referred the reply dated 2nd April, 2014 given by the defendants No.1 and 2 to the legal notice issued by the plaintiff wherein they have admitted that the amount referred in the news is Rs.15 crores is purely an objective speculation. They have also admitted that at least an amount of Rs.12,15,805/- was collected and deposited in a separate bank account which fact is admitted by the plaintiff and informed the defendants No.1 and 2 that the amount of Rs.12,15,805/- which was lying in the Bank of Baroda. Substantial amount was spent and some amount was paid to M/s Altius Sports by way of cheque. Subsequently, a further sum of Rs.3 lacs was raised by organizing football tournament and paid to M/s Altius Sports. The remaining CS(OS) No.2504/2014 Page 5 of 10 money is still due to be paid to M/s Altius Sports and will be paid as and when raised. The plaintiff specifically denied the allegations of misappropriation of amount of Rs.10-15 crores. The said allegations are completely baseless. Mr.Grover submits that be that as it may, rather the plaintiff has already spent more money than the amount received by the plaintiff. The plaintiff has an account of each and every penny for the same and the money collected was used appropriately. For this purpose, a four members committee was appointed, comprising of Mr.T.T. Dorjee, former Chief Secretary, Sikkim, Justice Mr. A.P. Subba, former High Court Judge, Mr.Amit Patro, owner of Sikkim Express newspaper and Mr.Arjun Rai, Manager United Sikkim Football Club. Under these circumstances, the said article written against the plaintiff is totally incorrect and has been published without any basis and cogent evidence.
13. It is correct that freedom of expression in press and media is the part of Article 19(1) of the Constitution of India where by all the citizens have a right to express their view. However, the said right of the expression is also not absolute but is subjected to the reasonable restrictions imposed by the Parliament or State in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. The said position is clear from the plain reading of the Article 19(1) and (2) of the Constitution of India.
14. The right to press and its freedom to express the ideas in public has always been the integral part of healthy democracy and the prior CS(OS) No.2504/2014 Page 6 of 10 restraint on the publication was considered to be acceptable under the earlier line of authorities. The Courts have always indicated that the fine balance is required to made so that the said liberty of press should not be uncontrolled or regulated by laws including the laws relating to public order, contempt etc and the same is subject to reasonable restrictions as per the Article 19 (2) of the Constitution of India.
15. The Supreme Court in Sahara India Real Estate Corporation Limited and Others vs. Securities and Exchange Board of India & Another, (2012) 10 SCC 603 observed that the prior restraint against publication is vested in the form of inherent powers of the superior Courts including High Court under the provisions of Section 151 of the Code of Civil Procedure wherein the Court can proceed to pass such restraint orders if the administration of justice so warrants approving the judgment of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. It has also been held by the Supreme Court that the right to open justice which is free and unprejudiced is a basic right that has to be balanced vis-a-vis the right to press and expression of ideas which is the facet of the right to speech and expression.
16. The Supreme Court in the case of Sahara India (supra) also proceeded to observe that the postponement of publication orders can be passed by the Court after seeing the publication and no general orders restraining future publications can be made but the Court will adopt a judicious approach while making the orders of CS(OS) No.2504/2014 Page 7 of 10 postponements after the considering the material available on record. In the words of the Supreme Court, it was observed thus:
"The principle underlying postponement orders is that it prevents possible contempt. Of course, before passing postponement orders, Courts should look at the content of the offending publication (as alleged) and its effect. Such postponement orders operate on actual publication. Such orders direct postponement of the publication for a limited period. Thus, if one reads Article 19(2), Article 129/ Article 215 and Article 142(2), it is clear that Courts of Record "have all the powers including power to punish" which means that Courts of Record have the power to postpone publicity in appropriate cases as a preventive measure without disturbing its content. Such measures protect the Media from getting prosecuted or punished for committing contempt and at the same time such neutralizing devices or techniques evolved by the Courts effectuate a balance between conflicting public interests. It is well settled that precedents of this Court under Article 141 and the Comparative Constitutional law helps Courts not only to understand the provisions of the Indian Constitution it also helps the Constitutional Courts to evolve principles which as stated by Ronald Dworkin are propositions describing rights [in terms of its content and contours] (See "Taking Rights Seriously" by Ronald Dworkin, 5th Reprint 2010). The postponement orders is, as stated above, a neutralizing device evolved by the Courts to balance interests of equal weightage, viz., freedom of expression vis-a-vis freedom of trial, in the context of the law of contempt" (Emphasis Supplied)
17. It has been further observed by the Supreme Court that the Court while seeking to pass postponement order should examine the content of the publication on case to case to basis in order to form an opinion. It was observed thus:
CS(OS) No.2504/2014 Page 8 of 10"What constitutes an offending publication would depend on the decision of the Court on case to case basis. Hence, guidelines on reporting cannot be framed across the Board. The shadow of "law of contempt" hangs over our jurisprudence. This Court is duty bound to clear that shadow under Article 141. The phrase "in relation to contempt of Court" under Article 19(2) does not in the least describe the true nature of the offence which consists in interfering with administration of justice; in impending and perverting the course of justice. That is all which is done by this judgment" (Emphasis Supplied) "We do not wish to enumerate categories of publication amounting to contempt as the Court(s) has to examine the content and the context on case to case basis"
(Emphasis Supplied)
18. In view of the above said facts and law applicable to the present case, it appears to the Court that the plaintiff has been able to make out a strong prima facie case in his favour. The balance of convenience also lies in favour of the plaintiff. In case the interim order is not passed, the irreparable loss and injury would be caused to the plaintiff and the similar article issued at present is liable to be postponed.
19. Till further orders, the defendants No.1 to 8 are restrained from publishing or re-publishing the defamatory imputations against the plaintiff similar to the article dated 18th April, 2014 written by the defendant No.1. However, the defendant No.1 is not precluded from reporting the facts which are covered within the ambit of fair reporting CS(OS) No.2504/2014 Page 9 of 10 on the basis of true, correct and verified information coupled with the cogent evidence.
20. Compliance of Order XXXIX Rule 3 CPC be made within three days from the date of receipt of the order.
21. Copy of the order be given dasti under the signatures of the Court Master.
(MANMOHAN SINGH) JUDGE AUGUST 26, 2014 CS(OS) No.2504/2014 Page 10 of 10