Rajasthan High Court - Jaipur
Prabhu Chawla And Ors. vs Shivnath Soni And Anr. on 8 March, 1988
Equivalent citations: 1988WLN(UC)398
JUDGMENT Mohini Kapoor, J.
1. In this revision petition the scope and meaning of some person aggrieved' in Section 199 Cr.PC is to be examined. The Additional C.J.M, Kota, has taken cognizance, upon a complaint, tiled by the non-petitioner Shri Srinath Soni, who is the President of Instrumentations Workers Union (Intuc) Kota, for the alleged defamation of the President and the Prime Minister of this Country An article published in the Hindi version of 'India Today' dated 28th February, 1987, under the heading 'Khatarnak Takrav' is the writing on basis of which the petitioners, who are the Senior Editor, Chief Editor and the Printer of the magazine, are being proceeded against for the offences under Sections 500, 501 and 502 IPC.
2. By this order it is not to be decided whether the words written in the article amount to defamation or not, so the contents may be seen in brief only. The President of India is said to be merely a Rubber Stamp and the Prime Minister is said to be an inexperienced person. The strained relations between the President and the Prime Minister is the basis on which the political situation has been discussed.
3. The learned Addl. C.J.M. recorded the statement of the complainant Shrinath Soni and one Kuldeep Kapoor under Sections 200 and 202 Cr. PC before taking cognizance against the petitioners. In his opinion the allegations made in the article regarding the relationship of the President and the Prime Minister were baseless and the petitioners had no right to publish such material. The complainant in his statement said that on reading the article, he felt that it was written with the intention of devaluing the status of the President as well as the Prime Minister and that an effort had been made to show that the Constitution of India is meaningless. According to him the whole nation public, President, Prime Minister and the Constitution had been defamed. The witness Kuldeep Kapur has deposed that his feelings were hurt after reading the article and he felt that the same was objectionable and defamatory The question which has not been considered by the learned Addl. C.J.M. while taking cognizance on the complaint of the non-petitioner is whether cognizance for the offence of defamation of the President or the Prime Minister could be taken on basis of a complaint made by Non-petitioner No. 1.
4. The learned Counsel for the petitioner has contended that under Section 199 Cr.PC cognizance of an offence punishable under Chapter XXI of the Indian Penal Code, which includes the offence of defamation, can be taken only upon a complaint made by some person aggrieved by the offence. This according to him, means that either a person who has been defamed can make a complaint or the complainant has to be a person who can be said to be directly or indirectly affected by the defarmation of the other person. The exceptions to this rule have been given under the proviso and some other person can make a complaint in those circumstances with the leave of the Court. Secondly, it is contended that under Section 199(2), Cr.PC the procedure has been given when any offence falling under Chapter XXI of the I.P.C. is alleged to have been committed against the President, the Vice President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union etc. and in this it is the Court of Sessions, which can take cognizance of the Offence but such a complaint has to be made by the Public Prosecutor with the previous sanction of the State Government or the Central Government. Sub-clause (6) of Section 199, Cr.PC reserves the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offeree before a Magistrate. In other words a person, other than a person against whom an offence is alleged to have been committed, can make a complaint when the person defamed is the President, the Prime Minister etc. and a Court of Sessions can take cognizance, but this complaint has to be made by the Public Prosecutor with the previous sanction of the Govt. This condition does not stand satisfied in the present case and according to the learned Counsel for the petitioner the Magistrate was not competent to take cognizance on the complaint moved by non-petitioner No. 1, who could not be said to be directly or indirectly aggrieved in any manner.
5. A number of decisions have been cited by the learned Counsel for the petitioner and they shall be seen presently.
6. On the other hand the learned Counsel for the non-petitioner has first of all contended that this revision is not maintainable as the petitioners should have first approached the Court of Sessions. Secondly, it is contended that cognizance on basis of the complaint could be taken as this is a case where the complainant's feelings have been hurt and he has been directly affected by the matter published in the article.
7. The first objection of the non-petitioner may be disposed first. Section 397, IPC provides for calling for records to exercise the power of revision and the same has been conferred on the High Court and also the Sessions Judge, Sub-clause (3) provides that if an application under this Section has been made by any person, either to the High Court or to the Sessions Judge no further application by the same person shall be entertained by the other of them. This makes it clear that a person can either move the High Court or the Sessions Judge under this Section and he has only one opportunity to do so and it is his choice whether he should move before the High Court or to the Sessions Judge If a person first moves the Sessions Judge and is unable to get relief, he cannot have a second innings before the High Court, but there is no prohibition for approaching the High Court in the first instance.
8. Coming to the merits of the case the relevant authorities may be looked into. In Hosseinbhoy Ismailji v. Emperor AIR 1934 Sind 188 a complaint was made by a member of the Karachi Bohri Jamait alleging that an article in a daily newspaper was highly defamatory of the spiritual head and High Priest of the Bohra Community. The Magistrate vacated the jurisdiction which he had assumed on the ground that the aggrieved person was the High Priest and no one else, and the complainant could not be said to be the person aggrieved, so as to make a complaint for the offence of defamation. While maintaining this order, it was observed that only such person as has directly or indirectly suffered for his own reputation by defamation complained of, can set the machinery of the law courts into motion. The aggrievement of the complainant should not merely be the one shared by every member of an organized society.
9. In Kamal Chand v. Amer Chand 1952 Cr.LJ 1647 by applying the principles of Section 198 Cr.PC (Old) it was held that a husband cannot file a complaint without leave of the court for the defamation of his wife by allegation of theft against her. It was also discussed that where the imputation was against the character, which could affect the person, as well as the relative with whom she was living, the allegation may directly or indirectly include the husband or other relative. But when the reputation of another is not involved, then that other person cannot file a complaint.
10 In Dhirendra Nath Sen and Anr. v. Rajat Kanti Bhadra criminal proceedings under Section 500, IPC were quashed when the person making the complaint was not the person who was defamed. An individual of the community whose spiritual head was being criticized was a person whose feelings had been injured in consequence of a defamatory statement, but this did not afford him a ground to prosecute the accused for defamation.
11. In G. Narasimha and Ors. etc. v. T.V. Chokkappa , it was held that the collection of persons must be identifiable, definite and determinate in relation to the imputations. The complaint in this case was in respect of a news-item published by the accused in a newspaper regarding a resolution which was read out by the President of the conference and taken as passed because no one got up to oppose it. When it was impossible to have any definite idea as to the number of persons who attended the conference, the ideas and ideologies to which they subscribed and whether all of them positively agreed to the resolution in question, it could not be said as to who were the constituents of the conference which was not an identifiable or a definite body, then the Chairman of the Reception Committee could not be said to be an aggrieved person entitling to maintain a complaint.
12. If the article in question in the present case can be said to be defamatory, then the persons aggrieved have to be the President and the Prime Minister of India. It is open to them to approach the Court, directly for the prosecution of the accused for the offence of defamation, or the Government may give its sanction and the Public Prosecutor may make a complaint, upon which a Court of Sessions can take cognizance. This is not the procedure adopted in the present case. The complaint has been filed in this case by a person, according to whom the article in the magazine 'India today' has been published with a view to lower the immage of the Indian Leaders which is an insult to the Nation as a whole, and it has hurt his feelings. The direct involvement of the petitioner can be said to be only to this extent that on reading the article in the magazine, he felt that an attempt had been made to lower the image of the President and the Prime Minister of this Country and this injured his feelings. The article does not in any way injure the reputation of the complainant. Merely because his feelings have been hurt, can he be said to be an aggrieved person on whose complaint cognizance for an offence under Section 500, IPC can be taken.
13. Section 199 Cr.PC provides an exception to the general rule that any person can knock the doors of the Courts for proceeding against a person who has committed a criminal offence. This provision is mandatory and has,been made a condition precedent for taking cognizance of offence. If the complainant has not been made by a person who can be said to be aggrieved, then the procedure by which the machinery of law has been set in motion has to be quashed. The grievance of the aggrieved person should be some grievance which can be recognized in law so as to say that the grievance is a legal grievance and it should not be any fanciful or sentimental grievance. The intention of the legislature in placing restriction on the persons who can make a complaint for the offence of defamation is that defamation is not an offence committed against the society as a whole but it is an offence in respect of individual only and any person who has directly or indirectly suffered in his own reputation by the defamation complained can move the Court. It is with a view to narrow down the circle of persons, who can proceed to launch a prosecution for defamation that only an aggrieved person is allowed to file a complaint. The reputation of the petitioner should be directly or indirectly affected in order to make him a person aggrieved. In this case the complainants reputation is not linked with that of the persons upon whom comments have been made in the article which is said to be defamatory. The fact that Section 199 Cr.PC does not say that a complaint is to be made by the person defamed but says that some person aggrieved may make a complaint, shows that it is not restricted to the person defamed alone to make a complaint. A person other than the person defamed can make a complaint but he has to be a person who is aggrieved and unless it is shown that the non-petitioner has suffered in any manner on account of the alleged defamation of some other persons, he cannot be said to be an aggrieved person. Mere injured feelings cannot give a ground for setting the law in motion for proceeding against the accused persons for defamation. In this case, it cannot be said that the complainant is in any manner affected by the loss of reputation of the persons alleged to be defamed. In my view the complaint made by the non-petitioner cannot be said to be an aggrieved person by a complaint and the cognizance taken by the learned Magistrate on basis of this complaint deserves to be quashed.
14. Section 199(2) Cr.PC provides for another method of launching proceedings when the person defamed is President, Governor, Magistrate etc. but as that procedure has not been followed in this case, the question of examining it from that angle does not arise.
15. I may also mention that whether a writing or saying is defamatory or not, is a question of fact and this Court cannot enter into it, unless it has first been examined by the' trial court. Hence, it is not considered necessary to deal with the arguments of the learned Counsel for the petitioner which deal with this aspect of the matter.
16. As cognizance has been taken by the learned Magistrate on basis of a complaint filed by a person who cannot be said to be an aggrieved person, the same is contrary to Section 199, Cr.PC and is to be quashed.
17. Accordingly the petition is accepted and the proceedings against the petitioners are quashed.