Delhi High Court
Editor Hindustan Times & Anr. vs Azadi Bachao Andolan (Delhi Unit) & Ors. on 24 August, 2011
Author: V.K. Shali
Bench: V.K. Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. C. No.1273/1997
Date of Decision : 24.08.2011
EDITOR HINDUSTAN TIMES & ANR. ..... Petitioners
Through: Mr.A.J.Bhambhani, Adv.
Versus
AZADI BACHAO ANDOLAN (DELHI UNIT)
& ORS. ...... Respondents
Through: Mr. A. K. Singh, Advocate
and Mr. Anay Baury,
Advocate
And
Crl. M. C. No.1304/1997
M/S PHIL & CO LTD. & ANR. ..... Petitioners
Through: Mr.A.J.Bhambhani and
Ms.Nisha Bhambhani,
Advs.
Versus
STATE & ANR. ...... Respondents
Through: Mr.A.K.Singh and
Mr.Anay Baury, Advs.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
Crl. M.C. No.1273 & 1304 of 1997 Page 1 of 17
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
V.K. SHALI, J.
1. These are two criminal miscellaneous main petitions filed under Section 482 Cr.P.C. First petition is titled The Editor Hindustan Times and Vs. Azadi Bachao Andolan (Delhi Unit) and others which bearing Crl. M.C. No. 1273/1997 and the second is M/S Phil and Company Ltd. And Anr. Vs. State and another bearing Crl. M.C. No.1304/1997.
2. In both these petitions, the order dated 26.03.1997 passed by learned Chief Metropolitan Magistrate is challenged. Apart from the challenge to the said order a prayer for quashing of the entire complaint against the petitioners has been made on the ground that the criminal proceedings initiated against both the petitioners is a gross abuse of processes of law. It may be also pertinent to mention here that by virtue of impugned order the learned Chief Metropolitan Magistrate has taken Crl. M.C. No.1273 & 1304 of 1997 Page 2 of 17 cognizance of the offence under Section 3 and 6 of the Indecent Representation of Women Act, 1986 read with Section 292 IPC on the ground that the advertisement displayed in the Hindustan Times on 5.5.1996 which were got inserted by M/s Phil & Company Ltd. so far as Konica Reel is concerned and the other by Mohan Lal and Sons showing the boy in an undergarment and the girl in swim suit were violating the aforesaid provisions.
3. Brief facts of the case are that on 23.05.1996 a complaint came to be filed by one Shri V. P. Srivastava claiming himself to be President of Azadi Bachao Andalon against the Deputy Commissioner of Police of Crime Branch before the CMM which reads as under:
"In the Court of Chief Metropolitan Magistrate, Tis Hazari, Delhi In the matter of :
Shri V.P.Srivastava, S/o Shri M.M. Srivastava, R/o 8/5, Roop Nagar, Delhi-110007 ......
Petitioner
Vs.
Dy. Commissioner of Police,
Crime Branch,
Crl. M.C. No.1273 & 1304 of 1997 Page 3 of 17
New Delhi ......
Respondent
Sir,
Most respectfully showeth:
That the applicant/petitioner wish to bring to the kind notice of this Hon'ble Court regarding the offences being committed by the undernoted offenders and the applicant/petitioners submit that the offenders/respondents may kindly be summoned by this Hon'ble Court for the purpose of seeking their explanation in connection with the penal offences being committed by him.
2. That the applicant/petitioner has placed on record documentary evidence visa-vis.
(a) Recorded cassettes of "Kam-ki-Batein"
telecaste by All India Radio F.M.
(b) Obscene posters of adult films appearing on the city walls. The copies of complaint in four Police stations are enclosed. The obscene posters have reappeared and are present to-day. (3) That the applicant/petitioner further place on present the vulgar and obscene advertisements appearing in the Hindustan Times on May 5, 1996 in their daily news paper. Copies enclosed.
(4) Since the penal offences are being committed and investigating agency i.e. the Crime Branches not taking cognizance.
It is, therefore, prayed that the following offenders may kindly be summoned by this Hon'ble Court.
(i) The Director All India Radio.
Crl. M.C. No.1273 & 1304 of 1997 Page 4 of 17
(ii) The Manager, Morie Stopes, the sponsorer
of Kam-ki-Batein.
(iii) The Manager Times F.M., the co-sponsorer.
(iv) (ii) Editor, The Hindustan Times, at Kasturba Gandhi Marg, New Delhi.
(v) (iii) The Proprietor Mohanlal Sons, Central Mkt., Lajpat Nagar, B-Block, Connaught Place
(vi) (iv) Distributor of "Konica Colour Film.
Sd/-
(V.P.SRIVASTAVA) Petitioner/applicant New Delhi.
Dated : 23.5.1996 Through (Surender Mighlani) Advocate"
4. Along with the complaint there were two advertisements appearing in the Hindustan Times one of which was purported to have been issued by Mohan Lal Sons, Connaught Place and other issued by M/s Konica photographic reel.
5. The complaint on presentation before the learned Chief Metropolitan Magistrate shows that for the first time on 20.08.1996 the learned Chief Metropolitan Magistrate Crl. M.C. No.1273 & 1304 of 1997 Page 5 of 17 issued notices to different parties ultimately only the Editor of the Hindustan Times and M/s Phil and Co., a company which had got the advertisement of Konica inserted were supplied copy of the complaint and proceeded against after hearing arguments.
6. The learned Chief Metropolitan Magistrate acting on the basis of the aforesaid complaint passed a detailed order taking cognizance of the offence against the aforesaid two petitioners for the offence as have been detailed herein above.
7. The petitioner feeling aggrieved by virtue of the aforesaid order of summoning filed the present petitions which came up for hearing for the first time on 02.05.1997, so far as, petition bearing Crl. M.C.no.1273/1997 is concerned and notice was directed to be issued to the respondents namely Azadi Bachao Andolan and its President Mr. V. P. Srivastava for 12.08.1997 and the proceedings of the trial court were stayed. Similar order was passed in Crl. M.C. No. 304/1997 on 06.05.1997. Crl. M.C. No.1273 & 1304 of 1997 Page 6 of 17
8. The said stay order is operating till date i.e. for almost 14 years.
9. I have heard learned counsel for the petitioners Mr.A.J.Bhambani and Ms. Seema Gulati for the petitioners and Sh. A. K. Singh for the respondents.
10. Though Mr. A. K. Singh, learned counsel appearing for the respondents has contended that he had appeared for the complainant/respondents herein, before the learned trial court as well as in the High Court but he has not been in touch with his client for the last more than 10 years but nevertheless, he as as an officer of the Court he will render all possible assistance.
11. The learned counsel for the petitioner has assailed the order of the summoning as well as all the complaint on account of various illegalities committed by the learned Chief Metropolitan Magistrate in not observing the procedure which is prescribed under Section 200, 202 Cr.P.C. before issuance of process under Section 204 Cr.P.C..
Crl. M.C. No.1273 & 1304 of 1997 Page 7 of 17
12. (a) The first contention of learned counsel for the petitioner, Mr. Bhambani was that no pre- summoning evidence was recorded and consequently there was a clear violation of Section 200 Cr.P.C. It is contented that on receipt of the complaint the learned Chief Metropolitan Magistrate ought to have recorded the statement of the complainant and thereafter held an inquiry and proceeded to dispose of the complaint under Section 203 or 204 Cr.P.C. On the contrary, it is alleged that he proceeded to make the roving inquiry of his own and issued the notices to the petitioners.
(b) Secondly, it is said that the impugned order of summoning does not show that the learned Chief Metropolitan Magistrate took the cognizance suo moto under Section 190 (1)(C) Cr.P.C.
(c) The third submission, which is made by learned counsel for the petitioner is that a perusal of order Crl. M.C. No.1273 & 1304 of 1997 Page 8 of 17 of summoning shows that as a matter of fact that learned Chief Metropolitan Magistrate while purportedly passing an order of summoning has pronounced the petitioner as guilty of having committed the offence of obscenity and violation of Section 3 and 6 of the Indecent Representation of Women Act 1986.
(d) The fourth submission is that the proceedings which were initiated by the respondent/complainants were in the nature of public interest litigation while as there is no scope or provision under the criminal law for initiation of pro-bono publico prosecution, although any person can be a complainant but then the procedure which is enshrined in the statute has to be followed which recording of the statement of the complainant holding of an enquiry and then proceeding under Section 203 or 204 Cr.P.C.
(e) Last but not the least, it has been contended that learned Chief Metropolitan Magistrate while passing Crl. M.C. No.1273 & 1304 of 1997 Page 9 of 17 the impugned order of summoning has drawn presumption without any basis which has resulted in gross abuse of the processes of law.
13. I have considered carefully the submissions of the learned counsel for the parties. I have also gone through the record including that of the trial court. I find substance in the submissions made by the learned counsel for the petitioner that not only the order of summoning is bad in law but also the way of order of summoning is passed by learned Chief Metropolitan Magistrate has resulted in gross abuse of processes of law. The reasons for forming this view is because of the following reasons.
(i) Section 190 of the Cr.P.C. clearly lays down as to how a criminal Justice Machinery can be put in motion. It can be put into motion in any of three manners namely:
(a) By Complaint
Crl. M.C. No.1273 & 1304 of 1997 Page 10 of 17
(b) By Police Report
(c) By taking suo moto cognizance, by the
Magistrate on the basis of his personal knowledge or on the basis of the information placed before him.
(ii) Section 2 (d) Cr.P.C. defines the word complaint and any person can be a complainant meaning thereby a complainant need not be an aggrieved person but at the same time the criminal law does not know any concept of complaint as a pro-bono publico.
(iii) Even if a complaint is made by a person who may not be aggrieved, if he becomes complainant, it is the duty of learned Magistrate to treat the said complaint under Section 190 (a) Cr.P.C. and proceed to record the statement of the complainant under Section 200 Cr.P.C. and thereafter, hold an enquiry under Section 202 Cr.P.C. and pass an appropriate order under Section 203 Cr.P.C. Crl. M.C. No.1273 & 1304 of 1997 Page 11 of 17 dismissing the complaint or proceeding against the accused persons by issuing process under Section 204 Cr.P.C.
(iv) Even if the case is examined from the point of view of Section 190(C) Cr.P.C. even then the order cannot be sustained because the order of the learned Magistrate does not show that he has taken the cognizance suo moto or on the basis of information given to him. On the contrary, he has in the very first sentence of the impugned order, it has been observed that this is a complaint as a pro bono public. If it was considered to be a complaint filed in public interest then pre summoning evidence ought to have been recorded which is not done.
14. Further at the stage of recording of the pre-summoning evidence the proposed accused against whom the complaint is filed, he is not to be summoned and even if he puts in appearance without being summoned, he Crl. M.C. No.1273 & 1304 of 1997 Page 12 of 17 cannot be permitted to participate. He can only observe as to what is happening. The cause of action accrues to the accused to assail the order only if he is summoned by the learned Magistrate after holding an inquiry and deciding to proceed against the accused under Section 204 Cr.P.C.
15. Coming back to the facts of the present case, the learned Chief Metropolitan Magistrate despite having a long experience and being well versed in criminal law has fallen into a grave error and committed an illegality by summoning the present petitioners even before recording the pre-summoning evidence and holding an inquiry and deciding to proceed against them by holding that there is sufficient ground for proceeding against them under Section 3 and 6 of the Indecent Representation of Women Act, 1986 and Section 292 of IPC. This procedure followed by the learned MM is totally illegal and does not have the sanction of law. The learned CMM had after issuing of notice before taking cognizance Crl. M.C. No.1273 & 1304 of 1997 Page 13 of 17 started conducting a roving and fishing inquiry which is totally illegal.
16. I feel that the job of the Judge is to follow the procedure prescribed by law for proceeding against a person as an accused which is prescribed under Section 190 Cr.P.C. read with Section 200, 202 and 204. It is not the job of the Judge to act as conscious keeper of the nation or the society, so far as its moral values are concerned. He cannot incorporate his personal knowledge personal prejudice into the facts of the case in hand and thereby assuming guilt of the accused and issue process against them practically holding them guilty. Therefore, the procedure which has been followed for the instant case does not have the sanction of the law and moreover, it has in my opinion caused serious prejudice against the petitioners as they have been left nothing to show their innocence . One is reminded of the law laid down by the Apex Court in Maneka Gandhi AIR 1978 SC 597 that deprivation of personal liberty of a person has to be in accordance with due process of law. The law has been Crl. M.C. No.1273 & 1304 of 1997 Page 14 of 17 interpreted as a law which is just fair and reasonable. This procedure which is just fair and reasonable in the instant case is laid down by the provisions of Section 200 to 204 Cr.P.C. for the purpose of proceedings against the accused for holding that prima facie he has committed an offence only when the said procedure is followed. Since, this has not been done, I feel that impugned order cannot be sustained because it has been resulted breach of Sections 190(a), 200 and 202 Cr.P.C.
17. On the contrary in the impugned order, the learned Chief Metropolitan Magistrate has quoted from the judgment of the Apex Court in "Ranjit D. Udeshi Vs. State of Maharastra AIR 1965 Supreme Court 881 and Chandrakant Kutandas Kalodhar Vs. the State of Maharastra & Others AIR 1970 Supreme Court 1390 Sanrevi Br.. Supreme Court 1967" and practically given finding that advertisements published in the Hindustan Times and got inserted by the petitioner Phil and Co. are nothing but obscene.
Crl. M.C. No.1273 & 1304 of 1997 Page 15 of 17
18. I am of the view that holding such a detailed examination of the advertisement without there being any evidence to that effect unsustainable in the eyes of law. It is infact a gross abuse of process of law and violating the statutory rights of the petitioner to hold a fair trial qua them. This also supports the plea raised by the learned counsel for the petitioner that the trial court has proceeded it impermissible assumptions.
19. For the reasons mentioned above, I am of the considered opinion that both the order of summoning as well as the complaint which has been filed by the respondent against the petitioners is not only unsustainable in the eyes of law but has also resulted in gross abuse of processes of law, jeopardizing the liberty of the petitioners. More so when they have remained tied down in the High Court for the last 14 years. There will be no useful purpose served now to remand the matter after setting aside the summoning order because the complainant himself is not traceable as claimed by his counsel.
Crl. M.C. No.1273 & 1304 of 1997 Page 16 of 17
20. I feel that pleas raised by the petitioners deserve to be allowed. Accordingly, the impugned order dated 26.03.1997 and the consequent complaint which is pending before the learned Chief Metropolitan Magistrate are quashed.
V.K. SHALI, J.
AUGUST 24, 2011 b Crl. M.C. No.1273 & 1304 of 1997 Page 17 of 17