Jammu & Kashmir High Court
Bansi Lal Gupta vs Mrs. Kirti Sharma & Ors. on 12 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561- A Cr.P.C. No. 23/2009, MP No. 22/2009
Date of decision: 12.10.2017
Bansi Lal Gupta vs. Kirti Sharma and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. P.N. Raina, Sr. Advocate with
Mr. J.A. Hamal, Advocate.
For the Respondents(s) : Mr. Nirmal Kotwal, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. In this petition, the petitioner seeks quashment of the proceedings pending as Complaint titled, "Mrs. Kirti Sharma and ors. Vs. Bansi Lal Gupta" in the Court of City Judge, Jammu under Section 500 RPC including all the orders passed therein, as being totally illegal, without jurisdiction and an abuse of the process of Court.
2. In this petition, it has been stated that the petitioner is the Editor-in-
Chief/Proprietor of English Daily "Early Times", Jammu. He was summoned after taking cognizance by the learned Judicial Magistrate 1 st Class (City Judge), Jammu in the Complaint. He appeared before the learned Trial Court and had tried to convince the Trial Court that, by reading of the Complaint and the statement of complainants and their witnesses recorded therein, no offence was made out under Section 500 RPC. It was also pleaded before the Trial Court that the complainants 561-A Cr.P.C. No.23/2009 Page 1 of 11 2 were not and could not be deemed to be aggrieved persons, as such, could not start the criminal prosecution. It had been further pleaded before the Trial Court that only because of rivalry; a Complaint had been made when there was never any factual nor any legal ground for the same. In fact, an application had been filed, requesting the Trial Court to drop the proceedings and dismiss the application. This application was dismissed vide order (Annexure-A) dated 15th December, 2008 by the Trial Court. The petitioner has also filed a copy of the Complaint (Annexure-B), as has been furnished to him, when he entered appearance before the Trial Court. A copy of the news item, which has been annexed by the complainants/respondents herein with their Complaint is also filed herewith as Annexure-C.
3. The petitioner is aggrieved of the initiation of proceedings and their continuation, as also the orders passed in the Complaint, where under instead of dismissing the same, cognizance has been taken and the application filed by the petitioner for dismissing the Complaint has been rejected. Petitioner pleads that the entire proceedings are an abuse of process of the Court, as such are liable to be quashed inter alia amongst others on the following grounds:-
(a) Section 198 of Cr. P.C makes an exception to the general rule that a Complaint can be filed by anybody whether he is an aggrieved person or not and modifies rule by permitting only an aggrieved person to move a Magistrate in case of defamation. The Section is mandatory, so that, if a Magistrate was to take cognizance of an offence of defamation on the Complaint by one, who is not an aggrieved person, the entire proceedings would be void and illegal.
Since complainants by their own showing can never be deemed to be the aggrieved persons, as such, the Complaint and the proceedings initiated thereon are void, illegal and an abuse of the process of Court. On this ground alone, the proceedings are liable to be quashed.
(b) Even in the cases of defamatory imputation against a collection of persons, unless the same would fall within 561-A Cr.P.C. No.23/2009 Page 2 of 11 3 explanation 2 of Section 499 RPC, it cannot be defamation. It would also be clear that explanation speaks of a collection of persons, as capable of being defamed. When such collection of persons must be definite and a determinate body so that the imputations in question can be said to relate to its individual members or components. The news item, which was made into basis of launching prosecution, admittedly, did not name anyone nor was the news item capable of being presented as a news item identifying any group or its constituents. Care had been taken and as was expected of a publication that nothing was done, that could go against the high standards of professional duties and the commitments, which go with freedom of Press. As this Hon'ble Court would find not only in the Complaint, but also the statements recorded contrary to the intent and content of the news item. Suppositions had been taken recourse to with the intention of launching a wholly arbitrary and a void prosecution. The news item was not in any way capable of being made into a cause for launching the prosecution even by reference to Section 499 RPC Explanation 2 of RPC. The allegations made by the complainants and the statements recorded in support of the Complaint itself, would indicate that the class they were trying to project was indeterminate and indefinite and not a definite one. In fact, there was nothing, which could have been read in the news item, as relating to any definite class. The proceedings having been commenced and being carried without the sanction of law, as such is an abuse of the process of the Court.
(c) If only the Trial Court would have read and appreciated the Complaint and the statements made in support thereof, keeping in views the provisions of law contained in Sections 499 and 500 RPC, particularly, in the background of all important facts of the news item neither referring anyone by name nor it containing anything that could even suggest that the news item was referable to any determinate and identifiable body. Petitioner pleads that the Hon'ble Trial Court itself, would have come to a conclusion that he Complaint could neither have been lodged nor the proceedings commenced by the complainants, as they were and could not be deemed to be aggrieved persons. Criticism of the public officers (Police Officers in this case) in not taking action or their failure to take action could never be made into a Complaint for defamation. Petitioner pleads that viewed from any angle, the proceedings are an abuse of the 561-A Cr.P.C. No.23/2009 Page 3 of 11 4 process of the Court and have been initiated contrary of the position of law and the facts, as also is the result of a rivalry against the petitioner and thus, an abuse of the process Hon'ble Court.
4. I have heard learned counsel for parties. Whether or not the allegations made in the complaint constitute an offence punishable under Section 500 of the Indian Penal Code, a court has to read the complaint as a whole and find out whether the allegations disclosed constitute an offence under Section 499 of RPC. I have gone through law on the subject.
5. From the perusal of complaint filed by respondents, it reveals that complainants have alleged that they are widows of Martyr Dy.SPs and are residing at Govt. Quarter at Gulshan Ground, Gandhi Nagar, Jammu after their husbands attained Martyrdom. That the complainants were shocked while reading the publication dated 18th October, 2007 of "EARLY TIMES" Newspaper at Jammu, wherein at page No. 8 of the newspaper it is reported and published "Police Officer caught in action with colleague's wife". The publication further makes a mention that a woman who happens to be a widow of an officer who had laid his wife in service. The publication further mentioned that the officer has illicit relations with the officer's widow and spends lot of time daily in her Govt. allotted quarter. The publication further says that the woman was infamous for her relationships with various officers and have allegedly black mailed a large number of them threatening to make public her relationships with them. She is also learnt to have received certain plots of land in her name by the officers in return to keep quite over the issue. It is further published that the women, sources informed, is her self a Govt. employee and widow of an officer who had laid his life during service and was very popular among the colleagues and masses.That all the complainants are the wives of late police officers who had laid their lives during service. All the complainants are putting up in Govt. allotted quarters at Gandhi 561-A Cr.P.C. No.23/2009 Page 4 of 11 5 Nagar Gulshan Ground, Jammu. All the complainants are serving as Govt. employees after their husbands attained Martyrdom.That the accused has intentionally and deliberately made imputations intending to harm and knowing well that such imputations will harm reputation of the complainants and all the widows of late police officers. Due to this defamatory publication by the accused a shock wave has hit in the Govt. quarters to all the widows and their children of the respected Martyrs. The Govt. of Jammu & Kashmir every year observes "Martyrdom Day"
and the complainants alongwith all the widows of late Martyrs are called upon to officer Shardhangali to departed soul. That the imputation and the defamatory statement published by the accused in his publication issue dated 18th Oct 2007 at Jammu has not only hurt the complainants but has also shown disrespect and has injured the reputation of the above Martyrs the husband of the complainants. It is further submitted that the complainants were bestowed with the medals for the achievements of their late husband's for showing bravery while fighting the militancy in the State of J&K. But with the publication of this statement by the accused the medals and appreciation of the Martyrs has blown up the entire sacrifice of the martyrs. That the imputations and defamatory statement published by the accused has not only lowered the respect, image, integrity and honesty of the complainants in the estimation of general public, the police department and other families who are residing with the complainants in the same Govt. quarters, but has also lowered the image, integrity and reputation of the children of late martyrs. The children of the martyrs have also been demoralized on coming to know about the publication. The complainants got many telephone calls with regard to the publication of this defamatory news by the accused in his paper as the news has spread like a fire in the city as well as in the police quarters where the complainants are putting up. The complainants got 561-A Cr.P.C. No.23/2009 Page 5 of 11 6 telephone calls with regard to publication of the news by the accused from their relatives and the complainants felt ashamed due to the quarries put by the relatives. That the statement published by the accused is totally false, frivolous and defamatory and has knowingly been published by the accused just to lower the moral character of the complainants and the wives of late martyrs who are putting up in Govt. allotted quarters in police lines. The statement of publication is of such a nature that it will not only affect the entire life of the complainants but also will effect the reputation and respect of the children of martyrs. The accused has to prove the authenticity of the statement published in his newspaper and in case the accused fails to prove the authenticity of the statement made and published with regard to the widow/widows who is putting up in Govt. allotted quarters and is also a Govt. employee and if the accused fails to prove the same the complainants reserve their rights to claim damages to impute their reputation as well reputation of their late martyrs husbands as well as their children to the tune of Rs. 50 lacs each.
6. The news item published on 18th Oct. 2007 of early Times reads as under:-
"Policing is for general masses and not for the officers-this is perhaps the message which our khaki donned officers are giving to the society. A police officer was few days back found in a compromising position with the wife of another officer. The one who, by chance, caught the duo involved in 'immoral activity' was also an officer:- a senior to the one in the bed. But, where is the FIR and where is the reporting of the case? Nowhere, obviously because policemen are involved and who can dare rise against them? Reminds of the ages old danda-raaj. As far as the relevations by the sources in the police are concerned; some days back a police officer, otherwise known efficiency and hence has shouldered responsibilities on various posts in the city, was caught by his senior officer, in compromising position with a woman who happens to be a widow of an officer who laid his life in service. The senior officer who, by chance, caught the two took no action against the junior but for directing his subordinate to leave the premises at once and later managed his transfer to some 561-A Cr.P.C. No.23/2009 Page 6 of 11 7 'punishing posting'. Sources said two days after the incident the junior officer was transferred. Sources added the officer has illicit relations with the officer's widow and spends lot of time daily in her government allotted quarter. Even as various senior officers also know about the activity, there has been no action or any questioning in the case so far. Sources further disclosed that the woman was infamous for her relationships with various officers and have allegedly blackmailed a large number of them threatening to make public her relationship with them. She is also learnt to have received certain plots of land in her name by the officers in return to keep quiet over the issue. The woman, sources informed, is herself a government employee and widow of an officer who had laid his life during service and was very popular among the colleagues and masses."
7. Bare perusal of this news item, it is evident that there has not been mentioned any name of person.
8. Section 499 RPC reads as under:-
"Section 499:
Defamation. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1. It may amount to defamation to impute anything to a deceased person, if the Imputation would harm the reputation of that person, if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2. It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3. An imputation In the form of an alternative or expressed ironically, may amount to defamation. Explanation 4. No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a 561-A Cr.P.C. No.23/2009 Page 7 of 11 8 loathsome state, or in a state generally considered as disgraceful."
9. From the bare reading of Section 499, it is manifest that for attracting the section, two ingredients must be satisfied which are; one that the imputation made by the accused is defamatory in character; and two, that such imputation relates to the complainant directly or if it is not direct then such person falls in any category of the persons referred to in Explanation 2.
10. Defamation is the harm caused to reputation of a person. To constitute "defamation", there must be an imputation and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. Section 198 of Cr.P.C. reads as under;-
"198. Prosecution for breach of contract, defamation and offences against marriage.- No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Ranbir Penal Code, or under Sections 493 to 496 (both inclusive) of the same. Code, except upon a complaint made by some person aggrieved by such offence:
Provided that where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf."
11. Bare perusal of this section, it is evident that only person aggrieved can institute the complaint of defamation. `Person aggrieved' means a person who is injured or one who is adversely affected in a legal sense. The definition of section 499 RPC also makes it amply clear that the accused must either intend to harm the reputation of a particular person.
12. In the complaint, there is neither any intent on part of the publisher to cause harm to the reputation of particular person nor the complainants 561-A Cr.P.C. No.23/2009 Page 8 of 11 9 .So in the given facts of the present case, I am unable to come to conclusion that complainants come under the definition of person aggrieved in terms of section 198 Cr.p.c as there was no specific legal injury caused to any of the complainants since the appellant's remarks were not directed at any individual or a readily identifiable group of people.
13. In AIR 1972 SC 2609 in case titled G. Narasimban v T.V.Chokkppa, it is held as under:-
"13. On these contentions, the principal question for determination is whether the respondent could be said to be an aggrieved person entitled to maintain the complaint within the meaning of s. 198 of the Code. That section lays down that no magistrate shall take cognizance of an offence falling inter alia under Ch. XXI of the Penal Code (that is, ss. 499 to 502) except upon a complaint made by some persons aggrieved of such offence. Sec. 198, thus, lays down an exception to the general rule that a complaint 'can be filed by anybody whether he is an aggrieved person or not and modifies that rule by permitting only an aggrieved person to move a magistrate in cases of defamation. The section is mandatory, so that if a magistrate were to take cognizance of the, offence of defamation on a complaint filed by one who is not an aggrieved person, the ;trial and conviction of an accused in such a case by the magistrate would be void and illegal.
14. Prima facie, therefore, if s. 198 of the Code were to be noticed by itself, the complaint in the present case would be unsustainable, since the news item in question did not mention the respondent nor did it contain any defamatory imputation against him individually. Sec. 499 of the Penal Code, which defines defamation, laid down that whoever by words, either spoken or intended to be read or by signs etc. makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that the imputation will harm he reputation of such person, is said to defame that person. This part of the section makes defamation in respect of an individual an offence. But Explanation (2) to the section lays down the rifle that it may amount to defamation to make an imputation concerning a company or 561-A Cr.P.C. No.23/2009 Page 9 of 11 10 an association or collection of persons as such. A defamatory imputation against a collection of persons thus falls within the definition of defamation. The language of the Explanation is wide, and therefore, besides a company or an association, any collection of persons would be covered by it But such a collection of persons must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished. from the rest of the community, was defamed Therefore, in a case where Explanation (2) is re- sorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. Where a writing inveigh, against mankind in a general or against a particular order of men, e.g., men of own, it is no libel. It must descend to particulars and individual-, to make it a libel (1). In England also criminal proceedings would lie in the case of libel against a class provided such a class is not indefinite, e.g. men of science. but a definite one. such as, the clergy of the diocese of Burham, the (1) (1699)3 Balk 224, cited in Ratanlal and Dhirajlal Law of Crimes (23nd ed.) 1317.
20. That being so, the High Court completely missed the real issue, viz., whether the conference was a determinate and an identifiable body so that defamatory words used in relation to the resolution passed by it would be defamation of the individuals who composed it, and the respondent, as one such individuals and chairman of its reception committee could maintain a complaint under s. 500 of the Penal Code. Whether the Dravida Kaghagam was an identifiable group or not was beside the point, for, what had to be decided was whether the conference which passed the resolution in question and which was said to have distorted was such a determinate body, like the Rashtriya Swayam Sevak in Tek Chand's case(',) or the body of public prosecutors in Sahib Singh Mehra's case(1) as to make defamation with respect to it a cause of complaint by its individual members. In our view the High Court misdirected itself by missing the real and true issue arising in the applications before it and deciding an issue which did not arise from those applications. The judgment of the High Court, 'based on an extraneous issue, therefore, cannot be sustained. In this view of the matter, we would have ordinarily remanded the case to the High Court. But such a procedure appears to be unnecessary, as in our view, the conference was not such a determinate class like the one in the cases referred 561-A Cr.P.C. No.23/2009 Page 10 of 11 11 to earlier, where complaints by its individual member or members were held maintainable. It is impossible to have any definite idea as to its composition, the number of persons who attended, the ideas and the ideologies to which they subscribed, and whether all of them positively agree d to the resolution in question. The evidence simply was that the person presiding it read out the resolution and because no one got up to oppose it was taken as approved of by all. The conference clearly was not an identifiable or a definitive body so that all those who attended it could be said to be its constituents who, if the conference was defamed, would, in their turn, be said to be defamed.
In these circumstances and for the reasons set out above, we allow these appeals, set aside the order of the High Court and quash the proceedings taken out by the Magistrate on the ground that the respondents complaint was not competent."
14. In view of above law, I do not find any substantial material in the news item in question and in complaint filed by respondent to proceed against the petitioner under Section 500 RPC. But, it is also held here that it is a statutory duty of an Editor of the newspaper not to publish any unambiguous or mysterious news in the paper. News item should be specified based on true facts. Hence, this petition is allowed and all the proceedings in complaint titled Mrs. Kirti Sharma & ors. Vs. Bansi Lal Gupta pending in the Court of learned City Judge Jammu under Section 500 RPC, are set aside and complaint is quashed.
(Sanjay Kumar Gupta) Judge Jammu, 12.10.2017 Ram Krishan 561-A Cr.P.C. No.23/2009 Page 11 of 11