Delhi High Court
Primero Skill & Training Pvt Ltd vs Selima Publications Pvt Ltd & Ors on 23 March, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd March, 2017
+ CS(COMM) 1651/2016 & IA No.15902/2016 (under Order XXXIX
Rules 1&2 CPC).
PRIMERO SKILL & TRAINING PVT LTD ..... Plaintiff
Through: Mr. C.S. Yadav, Mr. Praful Jindal and
Mr. Prem Ranjan Kumar, Advs.
versus
SELIMA PUBLICATIONS PVT LTD & ORS ..... Defendants
Through: None.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit (i) for declaration that the
publication of Article in the newspaper "Dainik Samayik Prasanga" dated
21st November, 2016 by the defendants is bad in law and contrary to the
Pradhan Mantri Kaushal Vikas Yojana; (ii) for permanent injunction
restraining the defendants from publishing and reporting any Article/news
similar to the Article dated 21st November, 2016; and, (iii) for recovery of
damages in the sum of Rs. 1,00,00,000/-.
2. The suit came up for admission on 21st December, 2016 and thereafter
on 23rd December, 2016 when after hearing the counsels for the plaintiff at
length I was of the view that the suit is not maintainable. Though I was
proceeding to dictate the order in the Court but the counsel for the plaintiff
stated that he wanted to file some judgments. Permitting written arguments
to be filed on or before 5th January, 2017, orders on maintainability of the
suit were reserved.
CS(COMM) No.1651/2016 Page 1 of 24
3. The plaintiff has since filed written arguments with copies of three
judgments and which have been perused by me.
4. It is the case of the plaintiff in the plaint (i) that the plaintiff is an
approved "Training Partner" for the "Pradhan Mantri Kaushal Vikas
Yojana" (PMKVY), a Skill Certification Scheme launched by the Ministry
of Skill Development and Entrepreneurship (MOSDE), Government of India
with an objective to enable a large number of Indian youth to take up
industry-relevant skill training that will help them in securing a better
livelihood; (ii) for achieving the goals enshrined under the PMKVY scheme,
the National Skill Development Corporation (NSDC) was established by the
Government of India in the year 2008 as non-profit public company under
the provisions of the Companies Act, 1956; subsequently on 8 th June, 2011
NSDC was transformed into a Private Limited Company with representation
from the MOSDE; (iii) that the plaintiff, as an affiliated training partner of
the NSDC under the PMKVY, has been allocated targets to provide training
throughout India; the plaintiff is engaged in providing training to the
unskilled and underprivileged people in order to impart practical knowledge
and develop their elementary skills in their respective fields of interest,
thereby transforming them into a skilled labour and further by assisting them
in getting jobs with the potential employers and ultimately enhance their
standard of living; (iv) that the defendant no.1 Selima Publications Pvt. Ltd.
is incorporated with the Registrar of Companies, Shillong having its
registered office at Silchar, Assam and is the publisher of a newspaper
Dainik Samayik Prasanga, a Bengali daily circulated newspaper in the State
of Assam and which is also available online at
CS(COMM) No.1651/2016 Page 2 of 24
www.samayikprasanga.in/epaper.php and can be accessed by general public
in any part of the world; (v) the defendant no.2 Ms. Jyotsna Hussain
Choudhury is the Managing Director of the defendant no.1; the defendants
no.3&4 Mr. Taimur Raja Choudhury and Mr. Touhid Raja Choudhury are
the Directors of the defendant no.1; the defendant no.5 Mr. Ripon Nath is the
Publisher of the newspaper of defendant no.1; the defendant no.6 Mr.
Anindya Kumar Nath is the Reporter of the story/article published in the
newspaper of defendant no.1 and defendant no.7 Ms. Mili Kalindi is a
trainee under the PMKVY who underwent training at the plaintiff‟s training
centre in District Hailakandi, Assam; (vi) that the primary feature of
PMKVY is that after the completion of the training of the trainee, NSDC
credits a pre-decided amount in consensus with the respective Skill Sector
Council in the bank account of the trainee; a fixed ratio from the said amount
is automatically debited from the savings account of the trainee and credited
to the current account of the training partner as training fees; (vii) further,
under PMKVY, Bank of India is the official banking partner of the NSDC
and provides banking platform for implementation thereof; as a mandate the
training partners as the plaintiff have to open current account with the Bank
of India; similarly the trainee/student mandatorily needs to have a savings
bank account with the Bank of India at the time of enrollment; the training
fee credited to the bank account of the trainee after completion of the
training is automatically debited from the savings account of the trainee and
credited to the current account of the training partner; (viii) that the plaintiff
has established training centres in various Districts of India for training of
students in the Job Role "Tea Plantation Worker"; (ix) that one such training
centre was set-up by the plaintiff at Serispore Tea Estate, District Hailakandi,
CS(COMM) No.1651/2016 Page 3 of 24
Assam; (x) that the defendant no.7 applied in the PMKVY and since did not
have a savings bank account with the Bank of India, an account in the name
of defendant no.7 was opened at Hailakandi branch, Assam of Bank of India
and on 21st September, 2015 defendant No.7 was enrolled as a trainee at the
Serispore Tea Estate Training Centre of the plaintiff; (xi) the defendant no.7
undertook training of 100 hours and her training ended on 26th October, 2015
and on evaluation of training she was declared „passed‟; (xii) that in terms of
PMKVY, NSDC on 4th August, 2016 credited Rs.5,000/- in the bank account
aforesaid of defendant no.7 and out of the same a sum of Rs.4,500/- was
automatically debited from the account of the defendant no.7 and credited in
the current account of the plaintiff as the training fee; (xiii) the defendant
no.7 however started making enquiries about the transfer of Rs.4,500/- out of
her account and though the officials of the plaintiff as well as of the Bank of
India fully explained the PMKVY to the defendant no.7 but the defendant
no.7 made an uproar about the same and filed a criminal complaint in the
Court of the Chief Judicial Magistrate, Hailakandi, Assam and in pursuance
whereto a First Information Report (FIR) was registered with P.S.
Hailakandi Sadar against the plaintiff and against the Manager and Assistant
Manager of its Serispore Tea Estate training centre of the plaintiff; (xiv)
thereafter the defendant no.7 approached the defendant no.1 for getting the
said incident published in the newspaper of the defendant no.1 and the
defendants no.2 to 5, without conducting any preliminary investigation on
the subject and in collusion and conspiracy with each other, published an
article "Skill Development Training Money usurped in Hailakandi: Garden-
Bank Manager, Primero has case in the Court" in its newspaper dated 21st
November, 2016; (xv) that in the said article it has been alleged that the
CS(COMM) No.1651/2016 Page 4 of 24
defendant no.7 has filed a complaint before the Chief Judicial Magistrate
Hailakandi, Assam; it has further been stated in the article that the
representative of the plaintiff misrepresented and informed the tea estate
workers that in lieu of their wastage of time they will get Rs.5,000/- but
Rs.4,500/- was credited to the account of the plaintiff and only Rs.500/-
remained in the account of the tea estate workers and that though the
defendant no.7 already had an account with the Bank of India but another
account with the same bank was opened for the said purpose; (xvi) the
aforesaid publication of wrong facts is in violation of the guidelines laid
down by Editors Guild; (xvii) by publishing only one side of the story, the
defendants have tried to malign the image of the plaintiff, its Directors and
representatives; moreover an attempt has been made to spread mis-
information about the PMKVY; (xviii) the plaintiff came to know about the
aforesaid article when one of its employee stumbled upon it on
www.google.com at the office of the plaintiff at New Delhi on the website
www.samayikprasanga.in/epaper.php; (xix) the news article dated 21st
November, 2016 reveals a completely false, misleading and fabricated
factual matrix of the entire incident, in complete ignorance of the actual
guidelines; the said article highlights that the defendant no.7 along with other
50 tea plantation workers were lured by the representatives of the plaintiff
and the Manager of the tea estate for getting enrolled in a skill development
programme in order to improve their productivity by assuring payment of
Rs.5,000/- in lieu of loss of earning during the training programme; (xx) that
the entire article seems to be a sinister design to defame the plaintiff and its
Directors and to demean PMKVY; (xxi) that the actions of the defendants
amount to defamatory libel and have tremendously damaged the good
CS(COMM) No.1651/2016 Page 5 of 24
reputation and image of the plaintiff company in the eyes of public at large;
(xxii) that since the publication and circulation of the impugned article the
business associates of plaintiff and public at large have started
ignoring/shunning the plaintiff and some have even started questioning the
basic purpose of incorporation of the plaintiff; (xxiii) the plaintiff company‟s
image and esteem has suffered tremendously; and, (xxiv) that this Court has
territorial jurisdiction to try the suit as the plaintiff is situated at Delhi and
working for gain in Delhi and implementing PMKVY in partnership with
NSDC from Delhi and since the impugned article can also be accessed at
New Delhi and loss of reputation has been suffered by the plaintiff at Delhi.
5. The English translation of the impugned allegedly defamatory
newspaper article filed by the plaintiff reads as under:-
"Newspaper: SAMAYIK PRASANGA
Date: Monday Nov 21, 2016
SKILL DEVELOPMENT TRAINING MONEY USURPED IN
HAILAKANDI
"GARDEN-BANK MANAGER, PRIMERO HAS CASE IN
THE COURT"
Story by Anindya Kumar Nath, Hailakandi, Nov 20.
Tea Garden workers lured with skill development and money
usurped. Serispore tea estate's employee Nanda Kalindi's
wife's Mili Kalindi has registered a case in Hailakandi Chief
Judicial Magistrate's office. In the case, names of Serispore
tea estate manager Gurmeet Singh Pahwa, Assistant
Manager S. Dhar, Mambai's Primero Skill and Training Pvt.
Ltd. Director / Board and Manager, Bank of India,
Hailakandi branch, have been mentioned. Case has been
registered on November 17th with case number CR
1186/2016.
CS(COMM) No.1651/2016 Page 6 of 24
Mili Kalindi has mentioned in the case that Serispore tea
estate manager Gurmeet Singh Pahwa, Assistant manager S.
Dhar, Primero Skill and Training Pvt. Ltd., mobilised 50
workers where tea leaves were being weighed. In that
congregation, the Primero Kkill representative told those
assembled that to improve productivity of tea garden, skill
development is being provided and those assembled would be
given one week's training. Due to loss of earning for one
week, those attending training would be given Rs.5,000/- in
their bank account. Despite bank account present, Primero
representative said to open bank account in the Bank of
India, Shibbari Road, Hailakandi Branch. Mili Kalindi said
in the case that Serispore Tea Estate doesn't fall in purview
of Bank of India. Tea Estate Manager, Bank of India
manager and Primero representative asked and got thumb
impressions on the documents. Mili Kalindi and other
candidates said they have account in Hailakandi branch in
other banks. Bank of India manager, garden estate manager
said that other bank accounts would not be acceptable and it
should be opened only in BOI, Shibbari Road, Hailakandi
branch. As a result trainees in one way were compelled
listening to the accused to give thumb impression on various
documents. Post this training continued for a week.
After some days of completion of training, Serispore tea
estate manager Gurmeet Singh Pahwa informed that
Rs.5,000/- has been deposited in every trainee's account. As
a result poor hard working tea garden worker had a big
happiness in their mind. As per tea estate manager
information Mili Kalindi went to Bank of India, Hailakandi
branch with her passbook and manager BOI said that on
August 4, Rs.5,000/- was deposited in her account and that
moment Rs.4,500/- was debited from her account and
transferred to Primero Skills account. Remaining Rs.500 is
remaining in Mili Kalindi's account. In the case it is
mentioned when Mili asked BOI manager how without her
sign the money of Rs.4,500/- debited he did not have any
answer.
CS(COMM) No.1651/2016 Page 7 of 24
Further, Mili Kalindi on October 5th submitted an RTI and
through that came to know how Rs.4,500/- was transferred to
Primero's account. RTI was submitted to BOI, Head Office
and response came on November 4th in Hailakandi branch.
Hailakandi Bank Manager informed Mili Kalindi through
letter that on the day of submission of documents of bank
accounts of all trainees, account debit contract was signed
and also submitted for Rs.4,500/-. As a result BOI manager
transferred the money to Primero Skills account. Mili
Kalindi did not find it difficult to understand that Serispore
tea estate manager Gurmeet Singh Pahwa, Assistant
manager S. Dhar, Primero Skills and Training Pvt. Ltd.
Director/representatives and Hailakandi branch manager,
Bank of India has hatched a plan to usurp her money. Every
trainee in the tea garden has been a victim of this plan.
Poor, illiterate tea garden workers has been cheated and
before training documents has been signed in a deceitful
manner to transfer the money. Mili Kalindi has said that
Rs.4,500/- per head has been usurped of many trainee
candidates. Mili Kalindi with all these accusations has
requested to court in CJM, Hailakandi (CR 1186/2016) to
investigate and take action.
On the other hand this Sunday evening, Hailakandi Sadar
Thana, second officer Abdur Rehman Lascar has informed
the reporter that Hailakandi CJM Court has referred case to
Sadar Thana. In Thana, case 630/16 has been registered.
After receiving the case police woke up and was alerted. In
this case IO Abdur Rehman Lascar has said that on Sunday
Serispore tea estate manager Gurmeet Singh had come and
submitted his side of plea. On the other hand, Mili Kalindi,
Mila Kalindi, Ashok Chakha, Moyna Kalindi, Anta
Rikiyasan, Foolmonin Majuar, Anima Kalindi, Lakhimoni
Rikiyasan, Patiyarobi Das, Chyandmal, Khudiram Rikiyasan,
has come to Thana with this issue. IO Laskar has said that
on Monday BOI Hailakandi premises would be visited for
further investigation. On the other hand, Krishan Mukti
Sangram Samiti, Hailakandi District, Secretary Jahir Uddin
Lashkar, Serispore Sakha Committee, Secretary Udinbod
CS(COMM) No.1651/2016 Page 8 of 24
Bhudiya, Deputy Secretary Nanda Kalindi and Secretary
Abdul Salam Ansari jointly said that tea garden workers are
eligible for Rs.4,500/- to be returned has been submitted to
garden management."
6. The plaintiff has not placed before this Court the complaint filed by
the defendant no.7 with the Chief Judicial Magistrate, Hailakandi, Assam or
the FIR registered thereon. It is however not the case of the plaintiff that
what is published in the impugned article is not the true narration of the
contents of the complaint or of the FIR.
7. On a reading of the English translation aforesaid of the impugned
article it was felt that the defendants no. 1 to 6 therein had in their role as
Journalist/News Reporter only reported the filing of the complaint, the
registration of the FIR and the investigation thereon by the Police officials as
a news event. It was thus enquired from the counsel for the plaintiff as to
how the actions of the defendants no.1 to 6 could be said to be defamatory of
the plaintiff. It was further put to the counsel for the plaintiff that today‟s
newspapers, at least in Delhi, daily have at least two full pages if not more
devoted to filing of the cases in the Courts, orders thereon, happenings in the
Court, lodging of complaints/FIRs and whether not the same constitute news
events which public has a right to know and whether not the said right of the
newspapers, their editors and publishers and of the public would be curtailed
if it were to be held that no reporting as news could be made till the final
order of the last Court.
8. It was further put to the counsel for the plaintiff, whether not the
action of the plaintiff of, despite carrying on business in Assam where all the
CS(COMM) No.1651/2016 Page 9 of 24
defendants are situated and where the newspaper in local dialect containing
allegedly defamatory article was published, filing this suit far away in this
Court was nothing but an attempt on the part of the plaintiff to shut up and
stifle the defendants and to coerce the defendant no.7 to withdraw her
complaint and to not pursue / support the FIR. It was further put to the
counsel that the plaintiff could have very well taken the action, if genuinely
aggrieved, locally and why should the attempt of the plaintiff to drag the
defendants to this Court and which the defendants may be unable to do as
they do not appear to be persons of much means, be not nipped in bud.
Attention of the counsel was also invited to M/s. Kusum Ingots & Alloys
Ltd. Vs. Union of India (2004) 6 SCC 254 and Sterling Agro Industries
Ltd. Vs. Union of India AIR 2011 Del 174 incorporating principle of forum
convenience in domestic civil law.
9. The counsel for the plaintiff argued that if the plaintiff was entitled to
invoke the territorial jurisdiction of this Court, it could not be compelled to
invoke the territorial jurisdiction of another Court which may be more
convenient to the defendants. However the main emphasis of the counsel for
the plaintiff, with reference to the terms of PMKVY and other documents
concerning therewith filed by the plaintiff, was that PMKVY itself provides
for the procedure of crediting the account of the trainee with Rs.5,000/- and
automatically debiting a sum of Rs.4,500/- therefrom and crediting the same
to the account of the plaintiff as a training partner and thus the allegations of
the defendants published in the impugned article are false and defamatory of
the plaintiff.
CS(COMM) No.1651/2016 Page 10 of 24
10. The aforesaid argument of the counsel for the plaintiff misses the
charge which the defendant no.7 has levied against the plaintiff and which is
the subject matter of legal proceedings initiated against the plaintiff in
Assam. The case of the defendant no.7 is that the plaintiff lures the labourers
to the training scheme with the promise of their account being credited with
Rs.5,000/- and without disclosing that Rs.4,500/- would be automatically
debited therefrom.
11. It was further put to the counsel for the plaintiff, whether not
complaints to the Police Authorities enjoy absolute privilege and there can
be no defamatory action with respect thereto and whether not the remedy in
such a case is of action of malicious prosecution only.
12. No reply in this respect was forthcoming from the counsel for the
plaintiff nor has anything in this respect been stated in the written arguments
filed by the plaintiff and taken on record; rather the said written arguments
are a re-production of the contents of the plaint save reliance towards the end
being placed on (i) Reliance Petrochemicals Ltd. Vs. Proprietors of Indian
Express Newspapers, Bombay Pvt. Ltd. (1988) 4 SCC 592; (ii) Sahara
India Real Estate Corporation Limited Vs. Securities and Exchange Board
of India (2012) 10 SCC 603; and (iii) judgment dated 16th January, 2014 in
CS(OS) No.102/2014 titled Swatanter Kumar Vs. The Indian Express Ltd.
and copies whereof are annexed to the written arguments.
13. Having given further thought to the matter, I remain of the same view
as on the day when the suit had come up for admission, that this suit does not
deserve to be entertained and deserves to be thrown out at the threshold to
save the defendants, who do not appear to be persons with much monetary
CS(COMM) No.1651/2016 Page 11 of 24
means, from travelling to Delhi, engaging an Advocate, appearing and
contesting this suit at Delhi.
14. My reasons therefor are as under:-
(a) Supreme Court, in Youth Bar Association of India Vs. Union
of India (2016) 9 SCC 473, concerned with a petition under
Article 32 of the Constitution of India and while issuing
guidelines/directions for supply of copy of FIR has inter alia
directed that the copies of the FIR (unless the offence is
sensitive in nature, like sexual offences, offences pertaining to
insurgency, terrorism and of that category, offences under
Protection of Children from Sexual Offences (POCSO) Act,
2012 and such other offences) should, within twenty-four hours
of the registration of the FIR, be uploaded on the police website,
and if there is no such website on the official website of the
State Government so that the accused or any person connected
with the same can download the FIR and file appropriate
application before the Court for redressal of his grievances and
that the decision not to upload the copy of the FIR on the
website shall not be taken by an officer below the rank of
Deputy Superintendent of Police or a person holding equivalent
post.
(b) As per the law aforesaid declared by the Supreme Court, the
contents of FIR, irrespective of whether published in a
newspaper as a news event or not, are in public domain. Once
the Police itself, as per law declared by the Supreme Court is
CS(COMM) No.1651/2016 Page 12 of 24
required to publish the FIR, I fail to see how the defendants no.1
to 6 as editor/publisher of the newspaper or the defendant no.7
as complainant, can be proceeded against in an action for
defamation for publishing the contents thereof.
(c) It is not as if the direction aforesaid of the Supreme Court is
without regard to the reputation of the persons complained
against in the FIR. The law of defamation, which as far as India
is concerned is uncodified and based on common law, has
always recognised certain situations as privileged, words spoken
or written wherein cannot furnish a cause of action for a claim
on account of defamation. Supreme Court in Raja Ram Pal Vs.
Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184 held that the
term "privilege in law" is defined as an immunity or an
exemption from some duty, burden, attendance or liability
conferred by special grant in derogation of common right. The
term "privilege" was stated to be derived from an expression
"privilegium" which means a law specially passed in favour of
or against a particular person.
(d) The reason is that the law recognises those situations as where a
person should have freedom of speech, without being under the
fear of being hauled up subsequently for defamation.
(e) As far back as in Golap Jan Vs. Bholanath Khettry
MANU/WB/0056/1911 it was held by the Division Bench of
the Calcutta High Court that though defamation is a good cause
of action but even if the complaint to the Magistrate was
CS(COMM) No.1651/2016 Page 13 of 24
defamatory still the complainant was entitled to protection from
a suit for defamation and this protection was the absolute
privilege accorded in the public interest to those who make
statements to the Courts in the course of and in relation to
judicial proceedings. The Division Bench of the Madras High
Court also in Pedda Sanjivi Reddy Vs. Kondasari Koneri Reddi
AIR 1926 Mad 521 held that the statements made to the police
officer which could only be made with a view to their being
repeated on oath before the Magistrate as well as statements in
the petition presented to the Magistrate have been invested by
the common law of England with absolute privilege which
attaches not merely to the actual proceedings of any tribunal
exercising judicial function, but to all preliminary steps which
are in accordance with the cognised and reasonable procedure
of such a tribunal. It was also held that the public policy which
renders the protection of witnesses necessary for the
administration of justice necessarily involves that which is a
step towards, and is part of the administration of justice, namely
the preliminary examination of witnesses to find out what they
can prove, and consequently statements made by a witness to a
litigant or his solicitor in preparing proof are absolutely
privileged. A subsequent Division Bench of the Calcutta High
Court in Madhab Chandra Ghose Vs. Nirod Chandra Ghose
AIR 1939 Cal 477 added that it is a matter of public policy and
administration of justice that witnesses giving their evidence on
oath in a Court of justice should not have before their eyes the
CS(COMM) No.1651/2016 Page 14 of 24
fear of being harassed by suits for damages; the only penalty
which they should incur if they give evidence falsely should be
an indictment for perjury. No action for libel or slander was
held to lie against Judges, counsel, witnesses, or parties, for
words written or spoken in the course of any proceeding before
any Court recognised by law even though the words were
written or spoken maliciously, without any justification or
excuse, and from personal-ill-will and anger against the person
defamed. It was emphasised that a witness must be protected
for a preliminary statement as well. It was further held that
though some hardship may be caused to the person defamed but
it would be impossible to administer justice, if people were to
be afraid to give their testimony.
(f) Subsequently, in Anjana Saikia (Das) Vs. Anuradha Das 2003
SCC OnLine Gau 321 it was held that though an action for
defamation by statement in the FIR would lie but only after the
FIR case was decided. Similarly, in Mahavir Singh Vs.
Surinder Singh 2010 SCC OnLine P&H 9094 also it was held
that mere lodging of the FIR, though it may contain false
imputation, does not amount to defaming the person against
whom FIR is lodged. To the same effect is Kamlesh Kaur Vs.
Lakhwinder Singh 2008 SCC OnLine P&H 920.
(g) A learned Single Judge of the High Court of Madras in A.N.
Shanmugam Vs. G. Saravanan 2015 SCC OnLine Mad 728
held the filing of a suit for defamation in such circumstances to
CS(COMM) No.1651/2016 Page 15 of 24
be a process to escape from criminal prosecution and to make
the defendant to come to terms. It was held that if every
complainant who lodges the complaint with law enforcing
agency is to face civil cases for defamation on the premise that
the imputations made in the complaint according to the accused
are false, many people fearing such actions on the part of the
accused may not come forward to lodge a complaint to the law
enforcing agency. It was further held that when an imputation
has been made in a complaint made to the law enforcing agency
with the belief that such agency would take criminal action
against the persons against whom such imputations are made,
the same provides a valid exception taking such act outside the
scope of tort of defamation. It was held that the lodging of the
complaint with the police could not be considered to be
publication of a defamatory statement and that if any wrong is
committed by lodging a false complaint with the police and
thereby setting the criminal law in motion, it may amount to
malicious prosecution for which action can be taken only after
disposal of the criminal case, wherein a specific finding is given
to that effect.
(h) With respect to malicious prosecution also, I have in
Gangadhar Padhy Vs. Prem Singh 211 (2014) DLT 104
relying on S.T. Sahib Vs. N. Hasan Ghani Sahib AIR 1957
Madras 646 held that action for malicious prosecution is not
favoured in law and should be properly guarded and its true
CS(COMM) No.1651/2016 Page 16 of 24
principles strictly adhered to, since public policy favours the
exposure of a crime and it is highly desirable that those
reasonably suspected of crime be subjected to the process of
criminal law for the protection of society and the citizen be
accorded immunity for bona fide efforts to bring anti-social
members of the society to the bar of justice.
(i) Thus there is no cause of action for a claim for defamation in
favour of the plaintiff against the defendant No.7 for the
statements made by the defendant No.7 in the complaint and in
the FIR lodged by her.
(j) A Nine Judges Bench of the Supreme Court in Naresh
Shridhar Mirajkar Vs. State of Maharashtra AIR 1967 SC 1
reiterated that Journalists have a fundamental right to carry on
their occupation under Article 19(1)(g); they have also a right
to attend proceedings in Court under Article 19(1)(d); and that
the right to freedom of speech and expression guaranteed by
Article 19(1)(a) includes their right to publish as Journalists a
faithful report of the proceedings which they have witnessed
and heard in Court. Freedom of speech and expression
guaranteed by Article 19(1)(a) was reiterated to include the
freedom of press. It was further held that what takes place in
Court is public and the publication of the proceedings merely
enlarges the area of the court and gives to the trial that added
publicity which is favoured by the rule that the trial should be
open and public; it is only when the public is excluded from
CS(COMM) No.1651/2016 Page 17 of 24
audience that the privilege of publication also goes because the
public outside then have no right to obtain at second- hand
what they cannot obtain in the court itself. It was yet further
held that if the matter is already published in open court, it
cannot be prevented from being published outside the court
room provided the report is a verbatim or a fair account.
(k) I have already hereinabove noticed that it is not the plea of the
plaintiff that what has been published by the defendant Nos. 1
to 6 in their newspaper is not a fair account of the complaint
and the FIR lodged by the defendant no.7.
(l) The Division Bench of the High Court of Bombay in Saroj
Iyer Vs. Maharashtra Medical of Indian Medicine, Bombay
2002 (1) Mh.L.J. 737 held that the Medical Council being a
Quasi Judicial Tribunal and the inquiry before it being quasi
judicial in nature, there can be no blanket ban for public in
attending the enquiry proceedings.
(m) This Court in Mother Dairy Foods and Processing Ltd. Vs.
ZEE Telefilms Ltd. ILR (2005) 1 Delhi 87 was concerned with
an application for interim relief in a suit by a major supplier of
milk and milk products to restrain a television channel from
publishing and telecasting a programme purported to be an
investigation into manufacturing of synthetic milk. It was the
case of the plaintiff that the programme was created and aired
to tarnish its image and reputation with the sole objective of
sensationalism and to defame. Finding that there was no plea
CS(COMM) No.1651/2016 Page 18 of 24
of conspiracy and the plea of malafides as set-forth to be
lacking in material particulars qua the persons at whose behest
the programme was being aired, interim injunction was denied
holding that media being a zealous guardian of freedom of
expression and speech, has a right to comment vigorously and
fearlessly on matters of public interest and the efforts of the
T.V. Channels in unearthing and bringing to the notice of
public the menace of manufacturing of synthetic milk was a
laudable measure for public good.
(n) I may notice that similarly here, it is in public interest that it be
investigated whether PMKVY is being misused to siphon off
monies in the name of training, without any real benefit to the
purported beneficiaries thereof.
(o) This Court in Vineet Jain Vs. NCT of Delhi (2011) 184 DLT
596 was concerned with the complaint of the offence of
defamation by reporting in the media contents of an FIR
registered of offences under Section 294/109/34 of the Indian
Penal Code, 1860 IPC read with Section 8 of Immoral
Trafficking Act and the raid conducted at a hotel in Delhi. It
was held that fair reporting pertaining to a matter of public
concern, without insinuations and innuendos i.e. a news item
containing statements of true facts emanating from a proper
source i.e. police is not actionable for the offence of criminal
defamation; a fact pertaining to an FIR being registered with
reference to the activities found to be carried out from the
CS(COMM) No.1651/2016 Page 19 of 24
Hotel as recorded in the FIR made public by the police, was
also held to be not amounting to a criminal defamation.
(p) The High Court of Bombay also in SNP Shipping Services
Pvt. Ltd. Vs. World Tanker Carrier Corporation 2000(2)
Mh.L.J. 570 held that a fair and accurate gist of the findings
given by the Court cannot constitute a cause of action for
defamation and the plaint was rejected under Order VII Rule
11 of the CPC.
(q) A Constitution Bench of the Supreme Court, in Sahara India
Real Estate supra relied upon by the counsel for the plaintiff
held that the inaccuracy of reporting of court proceedings will
be a contempt of court only if it can be said on the facts of a
particular case, to amount to substantial interference with the
administration of justice; that the privilege granted under
Section 4 of the Contempt of Courts Act, 1971 in favour of the
person who makes a fair and accurate publication is based on
the presumption of „open justice‟ in courts which permits fair
and accurate reports of Court proceedings to be published. It
was held that the media has a right to know what is happening
in courts and to disseminate the information to the public
which enhances the public confidence in the transparency of
court proceedings. It follows from the said judgment that
postponement of publication of court proceedings can be
applied for to the same court in which the proceedings are
pending and not to another court. I am in fact at pains to
CS(COMM) No.1651/2016 Page 20 of 24
understand in what context the counsel for the plaintiff has
relied on the said judgment. As far as reliance on Swatanter
Kumar supra is concerned, the law as expounded and noticed
above was noticed therein also but in the facts of that case
interim injunction was granted. The same also is of no benefit
to the plaintiff. The same is the position of Reliance
Petrochemicals Ltd supra.
(r) Mention may lastly be made of my judgment in Veer Arjun
Newspaper Pvt. Ltd. Vs. Bahori Lal 2013 SCC Online Del
5096 wherein following the aforesaid law it was held that
reporting of contents of a complaint is privileged and does not
invite a claim for defamation.
(s) Supreme Court recently in Subramanian Swamy Vs. Union of
India (2016) 7 SCC 221 was concerned with a challenge to
the vires of Sections 499 and 500 of the Indian Penal Code,
1860 constituting defamation as defined therein as an offence,
on the ground of the same being violative of Article 19(1)(a) of
the Constitution of India. Negativing the challenge, Supreme
Court held (i) that while in a democracy, an individual has a
right to criticize and dissent but his right under Article 19(1)(a)
is not absolute and he cannot defame another person as that
would offend the victim‟s fundamental right to reputation
which is a facet of Article 21 of the Constitution and one
fundamental right cannot be given higher status in comparison
to the other and what is required is proper balancing of the two
CS(COMM) No.1651/2016 Page 21 of 24
and harmonious construction in light of objective of fraternity
and fundamental duties envisaged under Article 51A(e) and (j)
of the Constitution; (ii) that Article 19(2) envisages
"reasonable restrictions"; right to say what may displease or
annoy others cannot be throttled; (iii) that there can be no cavil
that the right to freedom of speech and expression is a right
that has to get ascendance in a democratic body polity but at
the same time the limit has to be "proportionate" and not
unlimited; (iv) that the restrictions should not be excessive and
should be in public interest; (v) the test of reasonableness
cannot be determined by laying down any abstract standard or
general pattern--it would depend upon the nature of the right
which has been infringed or sought to be infringed and the
ultimate impact i.e. the effect on the right has to be determined;
(vi) that the principles of proportionality of restraint are to be
kept in mind by the Court.
(t) Notice may also be taken of Shreya Singhal Vs. Union of India
(2015) 5 SCC 1 which was concerned with the challenge to the
vires of Section 66A of the Information Technology Act, 2000
on the ground of being violative of Article 19(1)(a) of the
Constitution of India. It was held (a) that the fundamental right
of freedom of speech and expression requires free flow of
opinion and ideas and an informed citizenry is a pre-condition
for meaningful governance and the culture of open dialogue is
generally of great societal importance and the ultimate truth is
CS(COMM) No.1651/2016 Page 22 of 24
evolved by free trade in ideas in a competitive marketplace of
ideas; (b) that it is only beyond a certain threshold that Article
19(2) is kicked in; and, (c) that wider reach and range of
circulation over internet cannot justify restriction of freedom of
speech and expression on that ground alone and that virtues of
electronic media cannot become its enemies.
(u) Applying the tests aforesaid also, no cause of action in favour of
plaintiff or against any of defendants is disclosed.
(v) Supreme Court in Pearlite Liners (P) Ltd. Vs. Manorama Sirsi
(2004) 3 SCC 172 was concerned with a suit for specific
performance of a contract of personal service. The same was
dismissed by the trial court and the first appellate court on a
preliminary issue as to the maintainability thereof but was in
second appeal restored by the High Court and remanded for
trial. Supreme Court held that once the reliefs claimed of,
declaration that the transfer order was illegal and void and of
declaration that the plaintiff continued to be in service of the
defendant could not be granted by the Court, such a suit should
not be allowed to continue and go for trial and should be thrown
out at the threshold on the ground of want of jurisdiction of a
Court to grant the reliefs prayed for. Accordingly, the orders of
the trial court and the first appellate court were upheld and
restored and the order of the High Court of restoring the suit and
remanding it for trial was set aside. Though in the facts of that
case, the suit was dismissed after notice to the defendant and
CS(COMM) No.1651/2016 Page 23 of 24
after framing a preliminary issue but the fact remains that in
holding the suit to be barred, no notice of any plea of the
defendant was taken. If that is so, then, in my opinion, the suit
can also be dismissed without notice to the defendant, if the
Court finds that the plaint discloses no cause of action.
15. Though I am also of the opinion that this Court would not have the
territorial jurisdiction to entertain the suit as no part of the cause of action
has accrued within the jurisdiction of this Court as the defendants are not
stated to be selling their newspaper at Delhi and their website is not
interactive and the article concerned is in Bengali language with which very
few Delhiites would be conversant with and the plaintiff has not pleaded that
any one at Delhi understood the said article but I refrain from returning a
final finding on the said aspect being of the view that the suit of the plaintiff
is otherwise not maintainable.
16. The suit is accordingly dismissed.
No costs.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
MARCH 23, 2017 „pp‟ CS(COMM) No.1651/2016 Page 24 of 24