Andhra HC (Pre-Telangana)
V.Radhakrishna And 6 Others vs Counsel For The on 5 January, 2018
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL PETITION No.11861 of 2017
05.01.2018
V.Radhakrishna and 6 others..Petitioners
Alla Rama Krishna Reddy and another. Respondents
Counsel for the Petitioners : Sri B.Nalin Kumar
Counsel for Respondents:Sri P.Sudhakar Reddy
Public Prosecutor
(Telangana State)
<Gist :
>Head Note:
? Cases referred:
1. 1985 (2) GLR 1278
2. (1972) 2 SCC 680
3. (2001) 6 SCC 30
4. (2002) 6 SCC 670
5. (2015) 1 SCC 788
6. 1982 SCC OnLine Del 270
7. 2002-1-LW (Crl) 306
8. 1980 C.L.J. 1036
9. 1980 CL.J 160 RAJ
10. AIR 1972 CAL. 216
11. 1964 (1) Cri.L.J. 367
12. 1965CriLJ434
13. 1970 KLJ 991
14. AIR 1925 Cal 1121
15. AIR 1950 Pat 545
16. AIR 1952 All 14
17. AIR 1935 Rangoon 108
18. AIR 1970 Cal 216
19. (1944) A.C.116, H.L., at P.116
20. 2006 CriLJ 2302
21. Unreported judgment in CRR.No.1856 of 2009 Dtated 13.10.2015
(MANU/WB/0927/2015)
22. 2003(1) Mhlj 775
23. 2000(2) Mh.L.J. 90
24. 1986 Cri.L.J. 2002
25. (2010) 5 SCC 600
26. (2000) 7 SCC 552
27. 1977 Cri.L.J 21 (Pat)
28. RLW 2008 (1) Raj 809
29. AIR 1965 SC 1451
30. 1 F & F 347 : 175 ER 758
31. 2000 (2) ALD (Crl.) 758 (AP)
32. 1996CriLJ1372
33. 2001 Cri.L.J.3793
34. AIR 1979 SC 154
35. 1968Cri L J95
36. AIR 1970 SC 2015
37. (1985) 1 SCC 641
38. AIR 1995 SC 264
39. (2005)6SCC109
40. (1996)5SCC216
41. 2014 Cri L J 3349
42. (2008) 5 SCC 668
43. (2010) 10 SCC 479
44. (1998)5 SCC 749
45. 1992 Supp (1) SCC 335
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL PETITION No.11861 of 2017
ORDER:
This criminal petition is filed under Section 482 of Criminal Procedure Code (for short Cr.P.C.) to quash the C.C.No.791 of 2017 on the file of the XVII Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 500 and 501 of Indian Penal Code (for short I.P.C.), on various grounds.
Respondent No.1 A.Ramakrishna Reddy is the complainant before the Magistrate, he is the MLA, Mangalagiri Constituency in Guntur District being the member of YSR Congress Party filed private complaint under Section 200 of Cr.P.C. against the petitioners for the offence punishable under Section 500 and 501 of I.P.C. alleging that he has been serving the poor and down trodden in his constituency and is well known for his loyalty to the YSR Congress Party and has been advancing the interests, policies and programmes of YSR Congress Party in his constituency and also in Andhra Pradesh as a MLA of YSR Congress Party and active party functionary, being aggrieved by the defamatory, derogatory and venomous news which is devoid of truth, published by the petitioners/accused Nos.1 to 7 in Andhra Jyothi Telugu Daily on 15.05.2017 and on 16.05.2017.
Petitioner No.1/accused No.1 is the Managing Director, Amodha Publications Pvt. Ltd, publishing a Telugu Daily newspaper on the name and style of Andhra Jyothi. Other petitioners i.e. petitioner No.2/accused No. 2 is the Printer & Publisher, Andhra Jyothi Telugu Daily being published on behalf of Amodha Publications Pvt. Ltd at Amodha press. The petitioner No.3/accused No. 3 is the Editor, Andhra Jyothi Telugu Daily. The petitioner/accused No. 4 is the Bureau Chief, Telangana Edition, Andhra Jyothi Telugu Daily. The petitioner/accused No. 5 is the Reporter, Andhra Jyothi Telugu Daily. The petitioner/accused No. 6 is the Bureau In-charge, Amodha Publications Pvt. Ltd, Andhra Jyothi Telugu Daily, Andhra Edition. The petitioner/accused No. 7 is the Bureau In-charge, Amodha Publications Pvt. Ltd, Andhra Jyothi Telugu Daily, Andhra Edition.
It is contended that a news item that is formulated is being put before the accused no. 1 to 4 and 6 & 7 by the accused no. 5 i.e., reporter and thus it is being selected to be published before it takes a shape and appears in the newspaper in Black & White.
It is alleged that all the petitioners being the Managing Director, Printer and Publisher, Editor, Bureau Chief, Reporter, Bureau in-charge published two news items on 15-05-2017 and 16.05.2017, which are defamatory by making serious allegations against Y.S.Jagan Mohan Reddy, president of Y.S.R.Congress Party and Y.S.R. congress party. The alleged defamatory, derogatory news items published in the Andhra Jyothi News Paper are libellous, scandalous, untruthful, unfounded, per se defamatory and they were published to promote selfish ends of Telugu Desam party by distorting the true facts about the meeting Y.S. Jagan Mohan Reddy and the party members the Honble Prime Minister and by twisting the representation submitted there at and thus defaming Sri. Y.S. Jagan Mohan Reddy and YSR Congress Party without due care or caution in Andhra Jyothi Telugu daily main edition both in Telangana and Andhra Pradesh with the caption (both vernacular and translated news items are appended to this judgment as annexure) and with Subtitles The crux of the publication is that With these captions a totally distorted version published, the personality, name and fame of Y.S Jagan Mohan Reddy and YSR Congress Party are tarnished, the defamatory article as a banner item was published. It is as follows:
Further, it is alleged that the petitioners totally distorted the personal representation dated 09.05.2017 submitted by Sri. Y.S. Jagan Mohan Reddy to the Honble Prime Minister Sri. Narendra Modi on 10.05.2017 where in fact the personal representation submitted deals with defection of the MLAs in Andhra Pradesh Legislative Assembly through corrupt means, the plight of Agri Gold Depositors, owes of Chilli farmers in Andhra Pradesh, granting special category status to Andhra Pradesh with a request to honour the commitment given to the state by granting special category status. While the said representation submitted deals with such aspects, the accused totally published a distorted and a false version of the representation and in their own words published on 15-05-2017 in Andhra Pradesh telugu daily reads as follows.
Further elaborated in the article as contents contained in the representation submitted personally to the Honble Prime Minister apparently on 10-05-2017 reads as follows.
It is further alleged that the mind-boggling distortion of the representation of Sri. Y.S.Jagan Mohan Reddy submitted in person to the Honble Prime Minister was twisted so much to the extent of disfiguring even as to how the representation was addressed i.e., where in fact the representation was addressed to as To, Shri Narendra Modi Ji, Honble Prime Minister, Government of India, New Delhi.
But the said article contains under the caption of It is quite unfortunate that the petitioner No.1 buttressing with much quantity of venom always ready to spit on Y.S. Jagan Mohan Reddy and on YSR Congress Party subtitled the defamatory article as.
While in fact what was studded in the article was , so as to disfigure, defame, malign and mar the name and fame of Sri. Y.S. Jagan Mohan Reddy and YSR Congress Party that are crusading against anti-people policies of the ruling Telugu Desam party with the distorted and defamatory article.
It is further alleged that when in the news conference held by YSR Congress Party on 15-05-2017 in which the Representation submitted to the Honble Prime Minister was shown A1 and his team turned Volte-Face when they were exposed for publishing such a defamatory and distorted article against Y.S. Jagan Mohan Reddy and continued their onslaught and skipped what was published on 15.05.2017 and actually they themselves with ?????????.. made a ?????????! as a sequel to the article dated 15.05.2017 again on 16.05.2017 mostly questioning Sri. Y.S. Jagan Mohan Reddy whether have you not orally brought to the notice of Honble Prime Minister about your personal problems and did you not brought to his notice about EDs role against you and the article was titled as ?????????.. ?????????! with subtitles as The crux of the malicious defamatory article Dt. 16-05-2017 is as follows And further added in the article as.
The petitioners/accused jointly and severely and in unison with a common design and desire published a libelous defamatory, derogatory article aimed to tarnish at Sri. Y.S.Jagan Mohan Reddy and YSR Congress Party with a warping and twisted article on 15.05.2017, with a totally different version as if that the representation submitted to the Honble Prime Minister on 10.05.2017 was engrafted and embedded with his grievance and complaint against the two erring E.D. officials but to the world at large Sri. Y.S. Jagan Mohan Reddy in his meeting with the Honble Prime Minister has projected as if he met him to ventilate grievances of the people of Andhra Pradesh. Thus he is lying as to what had been submitted to the Honble Prime Minister in his meeting along with his party members. The exact matter is as follows.
With this concocted scene, the accused tried to project that Sri. Y.S. Jagan Mohan Reddy has a tendency and chronically distorts what had actually happened where in fact the accused themselves have distorted with chronic infested mind to malign and defame him and the party.
It is further alleged that Y.S. Jagan Mohan Reddy had met the Honble Prime Minister along with the party leaders to bring to his kind attention for a favorable action by submitting a representation, ventilating the owes of chilli farmers in Andhra Pradesh, Agri Gold depositors and bringing to his kind attention about rampant corruption prevailing in the state of Andhra Pradesh, substantiating it with the remarks found in the CAG report which irked the ruling Telugu Desam Party which chose to sling mud on Y.S. Jagan Mohan Reddy and the YSR Congress party. Petitioner No.1/accused No.1 known for his allegiance towards Nara Chandra Babu Naidu and the Telugu Desam Party utilized the media in his hands being the Managing Director of Amoda Publications which publishes Andhra Jyothi telugu daily to sub-serve the interests of TDP and its leader Nara Chandra Babu Naidu chose to draft an article studded with falsehood out of his imagination along with his team of other accused published an article on 15.05.2017 and 16.05.2017 in Andhra Jyothi telugu daily to belittle Sri. Y.S. Jagan Mohan Reddy. The article is in its tendency has excited against Sri. Y.S. Jagan Mohan Reddy an adverse opinions and feelings with an attack upon his moral character by attributing disgraceful conduct such as dishonesty, untruthfulness, ingratitude which brought him and the party to ridicule and contempt though there is no any form of misconduct. The article tangibly suggests that the purpose and the reason for meeting the Honble Prime Minister is not what had been projected to outside world and the representation given to the Honble Prime Minister was twisted as if it contains only his anguish and agony and Sri. Y.S. Jagan Mohan Reddy has lamented before the Honble Prime Minister about his grievance against the Enforcement Directorate Officials. In fact the representation submitted to the Honble Prime Minister deals with the agony and the anguish of the public in the state of Andhra Pradesh. With the publication of the said articles disparaged Sri. Y.S. Jagan Mohan Reddy in relation to his office and profession has a leader of opposition party in the state. This distortion was maliciously made to defame and has the tendency to lower Sri. Y.S. Jagan Mohan Reddy in the estimation of right thinking members of the society and the party members which destroyed the estimation of him with which he was being held by public as well as his party members. The articles impute him with a character of a chronic liar and intended to injure and exposed him to ridicule and contempt.
It is further alleged that the petitioner No.1 being the Managing Director of Amodha publications and is in total control of the selection of the news to be published, thus he is Kartha, Karma and Kriya, and under his scanner and direction alone his views takes shape as news which are published thus he is in the direct participation of the selection of views and is culpable for the said publication. The petitioner No.2 being the printer and publisher and the petitioner No.3 being the Editor of Andhra Jyothi Telugu Daily are liable for publishing the said false news items which was published on 15.05.2017 and 16.05.2017 in Andhra Jyothi Telugu News Edition. Such an irresponsible conduct and attitude on the part of the petitioner Nos.2 and 3 cannot be said to be done in good faith, but distinctly opposed to the high professional standards as even a slightest enquiry or a simple verification of the alleged statement about Y.S.Jagan Mohan Reddy would be found to be patently false and would have revealed the truth but it appeared that even the ordinary care was not resorted to by the contemnors in publishing such a false news items. This cannot be regarded as a public service but a dis-service to the public by misguiding them with false news, obviously this cannot be regarded as something done in good faith. The petitioner No.3 being the editor of Andhra Jyothi Telugu daily is responsible for the selection for the of the said news item. The petitioner No.4 being the Bureau Chief and Bureau-in-charge of Telangana edition and petitioner Nos.6 and 7 are Bureau Chiefs of Andhra editions are also culpable for selecting for publication of the said news item as they are also the concerned persons in selecting and authorising along with the other accused. The petitioner No.5 is the Reporter of the Andhra Jyothi Telugu Daily who brewed the news item. Thus, all the petitioners/accused contributed their role in the commission of defamation jointly and severally liable for publishing this defamatory news items in Andhra Jyothi Telugu daily.
Finally, it is contended that the complainant being aggrieved was also being encountered by Dantu Balaji Reddy and Golla Syam Babu who had very high esteem on Sri. Y.S. Jagan Mohan Reddy having read the article have informed the complainant that they lost the esteem on him with which they held earlier.
The petitioners, who are arrayed as accused Nos.1 to 7 in the complaint filed the present petition on various grounds while repeating their position in Andhra Jyothi as Managing Director, Printer and Publisher, Editor, Bureau Chief, Reporter, Bureau in charge, Bureau in charge, and raised the following contentions.
(1) Respondent No.1, who is the Member of Legislative Assembly, Mangalagiri Assembly constitution, is not an aggrieved person within the meaning of Section 199 of Cr.P.C. and the Court below did not consider the allegations made in the complaint and the evidence annexed to the complaint and competency of respondent No.1 (defacto complainant) while taking cognizance of the offence against the petitioners and there was absolutely no reference in news items either directly or indirectly about respondent No.1 and the news reports entirely relates to leader of the opposition in Andhra Pradesh State, as such respondent not an aggrieved person within the meaning of Section 199 of Cr.P.C., therefore, the complaint is not maintainable. (2) The petitioner No.1 being the Managing Director is only concerned with the administration of the company, who owns Andhra Jyothi Telugu daily and he is not concerned with the preparation, selection, editing or publication of Andhra Jyothi Telugu daily, as such he cannot be prosecuted for the offence punishable under Sections 500 or 501 of I.P.C.
(3) The Chief Metropolitan Magistrate did not consider the role of each petitioner in publishing news item dated 15.05.2017 and 16.05.2017 and prayed to quash the proceedings.
During hearing, Sri B.Nalin Kumar, learned counsel for the petitioners, contended that the respondent No.1 defacto complaint has no locus standi to file private complaint in view of Section 199 of Cr.P.C. and apart from that even if news item published in Andhra Jyothi dated 15.05.2017 and 16.05.2017 is libelous, such libelous statement is against unidentifiable group, and it would not amount to defamation. He also contended that petitioner Nos.1 and 2/accused Nos.1 and 2 being the Managing Director, Printer and Publisher, are no way concerned with the selection of news item and they cannot be proceeded with, for the offence punishable under Sections 500 and 501 of I.P.C., the other petitioners/accused Nos.3 to 7 are also no way concerned with the publication of news item, therefore, they are not liable for prosecution and the Chief Metropolitan Magistrate cannot proceed against them. In support of his contentions, he placed reliance on the judgment of High Court of Gujarat rendered in Narottamdas L Shah v. Subanali Nazarali and judgment of Apex Court rendered in G.Narasimhan v. T.V.Chokkappa and judgment of this Court rendered in Crl.P.No.9025 of 2016.
Learned counsel for the respondent No.1 Sri P.Sudhakar Reddy, contended that the term locus standi is unknown to law and the language used in Section 199 of Cr.P.C. is clear that some aggrieved person is competent to file complaint for the offence punishable under Section 500 and 501 of I.P.C. The respondent No.1 being the member of Legislative Assembly and active functionary of Y.S.R. congress party is competent to file complaint, when serious allegations are made against the president of party and the party, which are per se defamatory. Therefore, the respondent No.1 is competent to file private complaint against the petitioners for the offence punishable under Sections 500 and 501 of I.P.C. and placed reliance on the judgment of the Apex Court rendered in John Thomas v. Dr.K.Jagadeesan Learned counsel for the respondent No.1 further contended that Section 7 of Press and Registration of Books Act, 1867 give raise to a presumption and it is a rebuttable presumption and when the petitioners relying on Section 7 of Press and Registration of Books Act, they have to undergo trial, as they are entitled to rebut the presumption only during trial and at this stage, the Court cannot quash the proceedings and in support of his contentions, he placed reliance on K.M.Mathew v. K.A.Abraham P.S.Meherhomji v. K.T.Vijay Kumar and S.Nihal Singh v. Arjan Das and requested this Court to dismiss the petition.
Considering rival contentions and perusing the material available on record, the points that arise for consideration are:
(1) Whether the respondent No.1 defacto complainant being the member of Legislative Assembly of Mangalagiri Constituency and important functionary of Y.S.R. Congress Party is competent to file private complaint against the petitioners for the offences punishable under Section 500 and 501 of I.P.C.? (2) Whether the Y.S.R. Congress party is an identifiable group, if not, whether the news item dated 15.05.2017 and 16.05.2017 in Andhra Jyothi Telugu Daily are defamatory in nature, and the petitioner Nos.1 to 7 are liable for prosecution?
(3) Whether the petitioner No.1 being the Managing Director of Amodha Publications Private Limited and the petitioner No.2 being the Printer and Publisher of Andhra Jyothi Telugu Daily are liable to be prosecuted for the offence punishable under Sections 500 and 501 of I.P.C.?
(4) Whether the petitioner Nos.1 to 7 are liable for prosecution, if not, the proceedings in C.C.No.791 of 2017 on the file of XVII Chief Metropolitan Magistrate, Hyderabad be quashed?
P O I N T Nos.1 and 2:
Since both the points are interconnected, I find it expedient to decide both the points by common discussion.
The respondent No.1 filed private complaint under Section 200 of Cr.P.C. against these petitioners for the offence under Sections 500 and 501 of I.P.C. though he is not the person allegedly defamed, but alleging that the derogatory remarks are published in the Andhra Jyothi Telugu Daily Newspaper on 15.05.2017 and 16.05.2017, therefore, the respondent No.1 being a member of Y.S.R. Congress Party and member of Mangalagiri Legislative Assembly constituency, is competent to file complaint being an aggrieved person. This contention was refuted by the learned counsel for the petitioners on two grounds. The first ground is that no allegation/derogatory statement is made against the Y.S.R.Congress Party except referring , and even in the allegations extracted in the complaint, there is nothing about Y.S.R.Congress Party on its name, but the news item is only against Y.S.Jagan Mohan Reddy, not against the party, even if the allegations made in the complaint are accepted.
Learned counsel for the petitioners contended that when no allegation is made against the political party, the respondent No.1 being a member is incompetent to file a private complaint and placed reliance on judgment of this Court in Crl.P.No.9025 of 2016, whereas learned counsel for the respondent No.1 while contending that person aggrieved means any person, who is a member of party is competent to file complaint and placed reliance on the judgment of the Apex Court rendered in John Thomas v. Dr.K.Jagadeesan (referred supra), wherein the Apex Court adverted to the word used in Section 199 of Cr.P.C. by some person aggrieved and held that the collocation of the words "by some person aggrieved" definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case. If a company is described as engaging itself in nefarious activities its impact would certainly fall on every Director of the company and hence he can legitimately feel the pinch of it. Similarly, if a firm is described in a publication as carrying on offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it. If K.J. Hospital is a private limited company, it is too farfetched to rule out any one of its Directors, feeling aggrieved on account of pejoratives hurled at the company. Hence the appellant cannot justifiably contend that the Director of the K.J. Hospital would not fall within the wide purview of "some person aggrieved" as envisaged in Section 199(1) of the Code. Therefore, the respondent No.1 is competent to lodge complaint against the petitioners, while requesting to dismiss the present petition.
Section 199 of Cr.P.C. created interdict on the Court to take cognizance of an offence punishable under Chapter XXI of I.P.C. except upon a complaint made by some person aggrieved by the offence.
The word some person is not defined anywhere in the Cr.P.C.
At this stage, it is relevant to advert to Explanation 2 to Section 499 of I.P.C. According to Explanation 2 to Section 499 of I.P.C. when a defamatory allegation or statement of imputation is made against a company or an association or collection of persons as such, may amount to an offence punishable under Section 500 of I.P.C.
Even as per Section 499 of I.P.C. 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.
Therefore, the word person aggrieved can be used only in limited sense and every person cannot be said to be aggrieved person.
Aggrieved person means `troubled or distressed, having a grievance; adversely affected in respect of legal rights; suffers from an infringement or denial of legal rights. Therefore, the word aggrieved would be having different meanings at different connotations. It all depends upon facts and circumstances of each case.
The High Court of Madras had an occasion to decide who is person aggrieved in R.Rajagopal @ R.R.Gopal and A.Kamaraj v. V.Sathyamoorthy and adverted to various judgments of Apex Court and elaborated the word person aggrieved. In this context, it is profitable to refer G.Narasimhan v. T.V.Chokkappa the Apex Court held that Section 499 of I.P.C. lays down that no Magistrate shall take cognizance of an offence falling inter alia under Ch.XXI of the Penal Code (that is, Sections 499 to 508) except upon a complaint made by some persons aggrieved of such offence. Section 199, 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.
Similar view was expressed by the Delhi High Court in Ganesh Nand Chela v. Swami Divyanand , in the facts of case defamatory article was published in relation to a spiritual head of an ashram. A complaint was filed by one of the disciples and it was held that the complainant does not come under the category of person aggrieved, as he is only one of the disciples. It was also held that the complainant has not been able to prove that the imputations are against him personally, or that he is the person aimed at.
In Prempal Singh v. Phool Singh wherein spurious photographs of a mission was published depicting a false scene and consequently, they have held that a senior active member of the Mission, cannot be said to be a person aggrieved.
Likewise, the Calcutta High Court in Dhirendra Nath Sen v. Rajat Kanti Bhadra held that the spiritual head of certain community was defamed by publication and individual of that community is not an aggrieved person within the meaning of Section 199 Cr.P.C.
In earlier judgment in Mrs. Pat Sharpe Vs. Dwijendra Nath Bose the Division Bench of Calcutta High Court held that it cannot be laid down as inflexible rule that the expression "some person aggrieved" in Section 198 of Criminal Procedure Code, will only be limited to the person actually defamed or affected. The section does not say that complaint can only be made by the person defamed. What it requires is that the complaint must be made by `some person aggrieved'. The expression "some person aggrieved" was not intended to be restricted to the person actually defamed. It must be determined in each case according to its own circumstances whether the complainant could be said to be in a legal sense a person `aggrieved'.
In the facts of R.Rajagopal @ R.R.Gopal and A.Kamaraj v. V.Sathyamoorthy a publication was made defaming Jayalalitha and alleged that Jayalalitha with the connivance of her party men have conducted the atrocities. The objection raised by the counsel is that Jayalilatha and her party men is an indeterminate body and hence no individual can prosecute the publisher for the said article placing reliance on G.Narasimhan v. T.V.Chokkappa (referred supra), wherein the Secretary of the office bearer can file a complaint. Similarly in Sahib Singh v. State of Uttar Pradesh , the Apex Court while discussing Explanation No.2 of Section 499, which covers a person including a collection of persons, held that the collection of persons must be identifiable in the sense that one could with certainly say that this group of particular people has been defamed as distinguished from the rest of the community and further it has also been held that it is a matter of evidence.
Based on the principles of G.Narasimhan v.
T.V.Chokkappa (referred supra) the Madras High Court concluded that the Secretary of a political party is competent to file the complaint when the allegation is made against the political party.
When a serious allegation is made against Marxist Communist Party by way of libel, the High Court of Kerala in Krishnaswamy v. Kanaran held that in the relevant imputation, apart from the fact that the Secretary of the Marxist Communist Party had been defamed, the consequence of which will be considered at a later stage, it could be said on the evidence on record that there had been no defamation of the complainant as a member of a large body of the Marxists or Leftists belonging to the Marxist Communist Party, either of India as a whole, or much less of the Kerala State. Therefore, Sri C.H. Kanaran is not Competent to file a complaint as a member of the Marxist Communist Party on the basis that the Party or the Marxists had been defamed as he was not able to point out that he was the person against whom the imputation was levelled in news item.
The language used in Section 499 Explanation (2) of I.P.C. refers to collection of persons as such. The absurdity of allowing a Corporation or a company to sue in respect of a charge like murder or adultery was pointed out by B.B. Ghose, J. in Pratap Chandra Guha Roy v. King-Emperor . The opinion was expressed at page. 1126. Though it was a minority opinion, it carried weight because it was never the intention under Section 499 I.P.C., to make a company or Corporation liable for an offence under Section 500 or Section 501 of I. P.C. The observation is as follows:
A corporation or company could not sue in respect of a charge of corruption or of an assault because a corporation cannot be guilty of corruption or of an assault although the individuals composing it may be. These observations are quite apposite to the question before us and in my opinion the police force as such cannot complain of any imputation as regards its personal reputation because it cannot be guilty of beastly conduct, nor can the collective body be guilty of the offence of biting off the nipple of the breast of a woman or of betting the cheek of a woman. The matter may be tested in another way. Suppose somebody laid a complaint before a Magistrate in terms of the words of the charges in this case, would any Magistrate issue process against the police force as such or any member of the police force? I am sure no Magistrate would. In my judgment, therefore, the charges fail on the ground that they refer to the personal conduct of a collection of persons as such.
(Emphasis supplied) But the majority opinion was expressed by Buckland, J, that in a case in which the Explanation is properly called into use the identity of the company or association or collection of persons must be maintained throughout, with reference to the imputation as such with the intention of harming their reputation, so that, they are defamed. An imputation concerning a company or association of persons as such--and the last to words of the explanation are most material to its correct application--cannot by virtue of this explanation justify a charge of defaming an individual, and a charge cannot combine the explanation with the definition for such a purpose. Nor does it carry the matter any further to state, as has been done by the charges in this case, that the complainant was a member of the police force.
Those observations are germane to the question in the present case also.
In the present case the allegation is that the petitioners defamed the Y.S.Jagan Mohan Reddy, President of Y.S.R.Congress Party. If the allegation is solely against the President, the President of the party alone is competent to file the complaint. But the imputations in the news items published on 15.05.2017 and 16.05.2017 are attracted only Y.S.R.Jagan Mohan Reddy, but not Y.S.R.Congress party except referring word YCP. No imputation is made against Y.S.R.Congress Party in any of the news item in Andhra Jyothi Daily News Paper, but the imputations are made against Y.S.Jagan Mohan Reddy. Therefore, the respondent No.1 being the member of Y.S.R.Congress party or important functionary without any designation in the party, cannot maintain the complaint in his individual capacity. The Secretary representing Y.S.R.Congress Party, he can file the complaint. But in the present case, the complaint was not filed representing Y.S.R.Congress Party, which is unidentifiable or indeterminate group.
In the earliest judgments in Deobrat Shastri v. Rang Bahadur Singh , Municipal Board, Konch v. Ganesh Prasad Chaturvedi , group defamation was discussed. In Maung Chit Tay v. Maung Tun Nyuh it was held that a Corporation may maintain a prosecution or an action for a libel affecting its property, but not for libel merely affecting personal reputation, as a corporation has no reputation apart from its property or trade. The words complained of must reflect on the management of its business and must injuriously affect the corporation, as distinct from the individuals who compose it. The alleged libel must attack the corporation in its method of conducting its affairs, must accuse it of fraud or mismanagement, or must attack its financial position.
If a person complains that he has been defamed as a member of a class he must satisfy the Court that the imputation is against him personally and he is the person aimed at, before he can maintain a prosecution for defamation. In short, the grievance of the complainant should not merely be the one shared by every member of an organised society. Where, therefore, the editor of a paper writes an editorial which is highly defamatory of the spiritual head of a certain community, an individual of that community is not an aggrieved person within the meaning of Section 198, Criminal P.C. The mere fact that the feelings of a defamatory statement made against his religious head, affords him no ground under the law to prosecute the accused for defamation. (Vide:
Dhirendra Nath Sen and another v. Rajat Kanti Ehadra ) Thus, the action for defamation would not lie at the instance of unincorporated collection of individuals such as a political party or member's club. Such groups are merely classes of persons and there can be no libel on a class. In Eastwood v. Halmes, (1858) 1 F. & F. 347, Willes, J. Said: "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual which there is not here." The statement that there is no libel on a class is really governed by the rule that the plaintiff must prove that the libel refers to him.
Therefore, individual is not entitled to file a complaint when an imputation is made against a group or class of persons. The word group defamation is defined in paragraph 6 of page 5 of the Laws of England by Halsbury, Third Edition, Volume 24 and it reads as follows:
Group defamation: A class of persons cannot be defamed as a class, nor can an individual be defamed by a general reference to the class to which he belongs (Knupffer v. London Express Newspaper, Ltd. (1944) A.C. 116, H.L. at P-124). A plaintiff may be able to show however, that, though the statement reflected on a class of persons, he was the person aimed at and defamed; in such a case an action will lie at his instance. (Foxcroft v. Lacy 1613), Hob.89). If the judge holds that the words complained of are reasonably capable of being understood to refer to the plaintiff (Knupffer v. London Express Newspaper, Ltd., quoted above), the further question, whether they do refer to the plaintiff (Knupffer v. London Express Newspaper Ltd., quoted above), is a question for the Jury (Le Fanu v. Malcomson (1848), I.H.L., Cas. 637).
In Kenny's outlines of Criminal Law, 19th Edition by J.W. Cecil Turner at page 235, the following passage is seen under the Head "Liable Against a class of persons, no tort.
There is no civil action for libelling a class of persons, if, as must usually be the case, its members are too numerous and unascertainable to join as plaintiffs in a litigation. But since, technically speaking, it is not by the persons injured, but by the queen, that criminal proceedings are carried on, an indictment will lie, provided only that the class defamed be not an indefinite (e.g. 'the men of sciencei' 'the Socialists') but a definite one (e.c. 'the clergy of the diocese of Durham', R.V. Williams (1882) 5 B. and Ald. 595. Cf 2 Swanston 503, 'the justices of the peace for the country of Middlessex').
The law in respect to the defamation of a class of persons, as enunciated by Salmond is that in every case where the plaintiff is not named the test whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to. If the words can be regarded as capable of referring to the plaintiff, the jury will have to decide the question, of lact--Do they lead reasonable people, who know him, to the conclusion that they do refer to him. The reason why a libel published of a large or indeterminate number of persons described by some general name generally falls to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statements, for the habit of making unfounded generalizations is ingrained in ill educated or vulgar minds, or the words are occasionally intended to be facetious exaggeration. Thus no action would lie at the suit of anyone for saying that all mankind is vicious and depraved or even for alleging that all clergymen are hypocrites or all lawyers dishonest. For charges so general in their nature are merely vulgar generalization. (Salmond & Heuston On the Law of Torts, Twentieth Edition, 150).
In Knupffer v. London Express Newspaper Limited it is held as follows:
There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalisations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be a facetious exaggeration. Even in such cases words may be used which enable the plaintiff to prove that the words complained of were intended to be published of each member of the group, or, at any rate, of himself.
Again, the High Court of Madras in P.Varadarajan v. G.K.Mani, Member of Legislative Assembly had an occasion to analyze the word some person aggrieved under Section 199 of Cr.P.C. held that the collocation of the words "by some persons aggrieved" in Section 199 definitely indicates that the complainant need not necessarily be the defamed person himself, and whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case. Defamatory imputation against a collection of persons falls within the definition of defamation, 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.
In the facts of the above judgment, the complainant is the President of 'Pattali Makkal Katchi' (hereinafter referred to 'P.M.K.'). The accused are the Chairman and Managing Director, Publisher, Printer, Reporter and Photographer of the Tamil bi- weekly 'Kumutham' Reporter. In the issue dated 20.10.2005 of Kumutham Reporter Tamil bi-weekly it has been alleged that Indian Red Cross Society received Rs.50 crores from Foreign Red Cross Societies. The said amount collected for the purpose of spending for the welfare of the Tsunami victims is kept unspent due to the inaction on the part of Dr. Anbumani Ramadoss, Central Minister for Health and Family Welfare and also the Chairman of the Indian Red Cross Society. One Nagalakshmi, the victim of Tsunami, who was found loitering in the railway station with begging bowl committed suicide as she could not get any relief from the Tsunami relief fund. Basing on that allegation, the Dr.Anbumani Ramadoss being the organizing secretary of P.M.K.Party, who was nominated and elected as a member of the Rajya Sabha on being proposed by the complainant and supported by the other P.M.K M.L.A's of Tamil Nadu. He was consequently designated as the Chairman of All India Red Cross Society. An imputation was made against him. Therefore, a complaint was filed by G.K.Mani, Member of Legislative Assembly, for the offence punishable under Section 500 of I.P.C. and the same was questioned before the High Court under Section 482 of Cr.P.C.
The High Court of Madras relying on John Thomas v. Dr.K.Jagadeesan (referred supra) and R.Rajagopal @ R.R.Gopal and A.Kamaraj v. V.Sathyamoorthy (referred supra) expressed its opinion that when the imputations found in the article under challenge do not relate to the complainant or his political party. There is no allegation of the political activity of Dr. Anbumani Ramadoss in the aforesaid article. As there is no defamatory imputation levelled against the political party of the complainant and Dr. Anbumani Ramadoss, the complainant cannot claim that he falls squarely under the category of "some persons aggrieved" by the offence of defamation. PMK was not the target of attack in the article which is put to test. Therefore, the respondent/complainant who is the President of PMK has no locus standi to prefer the complaint for an offence under Section 500 of the Indian Penal Code.
Earlier the High Court of Calcutta in Kalyan Bandyopadhyay v. Mridul De a serious allegation was made against Sri Buddhadeb Bhattacharyya, the then Chief Minister that if he becomes the Prime Minister of India - India will be submerged. He's taking the rounds of Nandan in dhuti Panjabi (Kurta), let him go around Nandan, have a little scotch etc. in the evenings, let it be limited to that bit, so that he can dream a little scotch etc. in future, if he begins to dream beyond that then his dhuti will go and also his panjabi."
The tone and tenor of the person, who made contemptuous and irrelevant statement towards the then Chief Minister of West Bengal Mr. Buddhadeb Bhattacharyya in particular, and to a lesser extent also towards the CPI (M) which was the ruling party at the relevant time. Then the question before the Court was that whether Kalyan Bandyopadhyay was a person aggrieved. When the complaint itself clearly makes out the case that the entity against whom the alleged defamatory or derogatory statements were made is a political party [CPI (M)] which is not a 'determinate, definite and identifiable body', and so the proceedings at the instance of an individual member of the party are not tenable as he has not been individually defamed.
The High Court of Calcutta referred the judgment in Krishnaswamy v. Kanaran and G.Narasimhan v.
T.V.Chokkappa (referred supra) "Balasaheb Keshav Thackeray v. State of Maharashtra and Anr. " Ganesh Nand Chela v. Swami Divyanand, (referred supra) Vijay v. Suresh , M.P. Narayana Pillai v. M.P. Chacko , Dhirendra Nath Sen v. Rajat Kanti Bhadra (referred supra) and held that the petitioner herein by his derogatory statements caused defamation of the Communist Party of India (Marxist). The only identifiable member of that particular political party in the entire complaint happens to be Mr. Buddhadev Bhattacharya, the Chief Minister of West Bengal at the relevant time. The High Court of Calcutta held regarding the alleged defamation of the political party, relying on the law declared by various Courts referred above, is in respectful agreement with the decision of the Kerala High Court that the Communist Party of India (Marxist) is not a determinable, definite or identifiable body or association of such nature that each and every member of the same stands to get individually defamed when an insinuation is made against the party as a whole. The Complainant therefore cannot be held to be defamed individually, and consequently is not an "aggrieved person" and quashed the proceedings.
In view of the long line of judgments referred supra, to file a complaint for the offence punishable under Section 500 and 501 of I.P.C. the person must be an aggrieved person, who felt hurt or pain on account of such defamatory statement, but an individual representing a group cannot maintain a complaint against any individual or unidentifiable or indeterminate group of persons.
When similar question came up before the Apex Court in S.Khushboo v. Kanniammal , in the facts of the above judgment S.Khushboo made a specific comment that women are indulged in pre-marital sex, but some of the associations filed several complaints against Smt.Khushboo and she filed applications before High Court under Section 482 of Cr.P.C., but those petitions were dismissed on various grounds. Then the matter carried to Supreme Court, where the Supreme Court considered the purport of Section 199 (1) of Cr.P.c. and concluded that Section 199 Cr.PC mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging filing of frivolous complaints which would otherwise clog the Magistrate's Courts. There is of course some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is otherwise unable to initiate legal proceedings. However, in given facts of the present case, the High Court unable to see how the complainants can be properly described as 'persons aggrieved' within the meaning of Section 199 (1) (b) Cr.PC. As explained earlier, 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.
In M.S. Jayaraj v. Commissioner of Excise, Kerala the Apex Court had an occasion to analyze the word person aggrieved and held as follows:
The 'person aggrieved' means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. 'Person aggrieved' means a person who is injured or one who is adversely affected in a legal sense.
In a similar question came up for consideration before Patna High Court in Asha Parekh v. The State of Bihar where Patna High Court dealt with a case where a group of lawyers had filed a defamation case against the actors, the actress, the director, the producer, the script. writer, etc., of the movie Nadan. The case before this Court is, in fact, is identical in its content. In that case, the complainant alleged that one of the characters had played the role of an advocate and that there were defamatory statements made against the lawyers as a class. The Patna High Court while deciding the case, observed that the essence of the offence of defamation consists in calling that description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures and those inconveniences to which a person who is the object of such unfavourable sentiment is exposed, therefore, complaint must contain an imputation concerning some particular person or persons whose identity can be established. If they contain no reflection upon a particular individual or individuals, but equally apply to others although belonging to the same class, an action for defamation will not lie. Further, although the word 'person' in Section 499 of the Code includes a company or an association or a collection of persons as well as provided in explanation 2 of Section 499, but the class of person attributed to must be a determinate body. Y.S.Jagan Mohan Reddy is an individual, but not the party as a class, is incapable of being defamed. If any publication can be shown to refer specifically to particular individuals then alone an action for defamation may lie, not otherwise.
Relying on Asha Parekh v. The State of Bihar (referred supra) the Rajasthan High Court in Shah Rukh Khan v. State of Rajasthan actor Shah Rukh Khan played the role of an advocate in the movie and some of the dialogues were defamatory against the community of lawyers practicing in India. It was claimed by the advocates community that because of the said dialogue, the respondents were subjected to ridicule and anger from those who were sitting in the movie theatre. The advocates also alleged that their neighbours also ridiculed them as well.
Therefore, filed complaint against Mr. Shah Rukh Khan and others for defaming the lawyers community practicing in India. After considering the facts and circumstances of the case, Rajasthan High Court held that the law requires that the defamatory statement, in order to be actionable, be made against a definite and an identifiable group. However, lawyers taken as a class cannot be identified with any particular individual-indeterminate, indefinite, and unidentifiable as the members are: Firstly, the members of this class are too varied to be reduced to a few traits. There is not a homogenous class, but a heterogeneous one, made up of wonderfully different individuals. Secondly, they are spread over the length and the breadth of the land. Thirdly, the class is always in flux, ever changing, as new lawyers enter and old ones depart from the profession. The entire members of the class are clearly unidentifiable and indeterminable. Moreover, it is not the case of the respondent No. 2 to 7, that the Petitioner said anything specific about the lawyers of Kota, who arguably would form a definite collection of persons. The remark made by the petitioner was applicable to the lawyers as a community. Thus, a group of lawyers could not file a complaint against the petitioner for offence Under Section s 499 and 500 IPC. Therefore, the complaint is not even maintainable.
The Rajasthan High Court distinguished the facts of the case Shah Rukh Khan v. State of Rajasthan and Sahib Singh Mehra v. State of U.P. . The learned Counsel for the respondents Nos. 2 to 7 in the said case has relied on the case of Sahib Singh Mehra (supra) in order to argue that a group of lawyers can, indeed, file a complaint for the offence of defamation. But the said case is clearly distinguishable from Shah Rukh Khan case on the basis of factual matrix. In the case of Sahib Singh Mehra, the publisher had published an article defaming the Public Prosecutors and Assistant Public Prosecutors working in Aligarh. Thus, the Supreme Court held that the Public Prosecutors of Aligarh formed a definite and identifiable group of persons. Hence, any one of them can file a complaint against the publisher of the defamatory article. However, in the present case, the alleged statement has not been made specifically against any member of political party. The Rajasthan High Court came to a conclusion that since the statement has been made against the lawyers as a class, the case of Sahib Singh Mehra (supra) cannot be relied upon. But here, in the present case, the defamation of Y.S.Jagan Mohan Reddy or Y.S.R. congress party as a whole is not an identifiable group, since the Y.S.R.Congress party spread over the State. If such defamatory imputation is against any group i.e. member of Y.S.R.Congress Party in particular village or town or District, the respondent No.1 being one among them can be an aggrieved person.
Thus, action for group defamation of an unidentifiable group would not lie in a Criminal Court. According to Explanation No. (2) of Section 499 IPC, defamation is not restricted to an individual alone; it may also be committed against "a company or an association or collection of persons". However, the association or collection of persons should be definite and identifiable. In 1858, in the case of Eastwood v. Hollmes Willie J. observed that If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual."
From the law laid down by various High Courts and Apex Court, I could cull out the following:
(1) The person aggrieved means, who felt hurt or pain on account of such defamatory statement. An individual representing a group cannot maintain a complaint against any individual or unidentifiable or indeterminate group of persons.
(2) An individual representing a group cannot maintain a complaint against any individual or unidentifiable group of persons.
(3) The Secretary or president of political party can maintain a private complaint for the offence punishable under Sections 500 and 501 of I.P.C., but none else, when defamatory allegation is made against the political party.
Turning to the facts of the present case, respondent No.1 is only a member of unidentifiable or indeterminate group of persons i.e. Y.S.R.Congress Party, of course he is a Member of Legislative Assembly representing Mangalagiri constituency, but his membership in Y.S.R.Congress Party is not in dispute, how he is an aggrieved person was not explained in the complaint, who stated that two other persons by name Dantu Balaji Reddy and Golla Syam Babu informed him that they felt insulted on account of such news item published in the Andhra Jyothi Telugu Daily News Paper, thereby the respondent No.1 being the member suffered unbearable pain. Even assuming for a moment, the respondent No.1 is person aggrieved within the meaning of Section 199 of Cr.P.C. being a member of Y.S.R.Congress Party, what is defamatory imputation made against Y.S.R.Congress Party is unknown except referring a word YCP in the news item dated 16.05.2017, but in the body of news item as extracted in the complaint, no defamatory imputation is made against the party or its members, but the imputations were made only against Y.S.Jagan Mohan Reddy, who is the president of the party. Therefore, Y.S.Jagan Mohan Reddy is the person, who is allegedly defamed, thereby the respondent No.1 is not a person aggrieved to maintain a private complaint for the offence punishable under Section 500 of I.P.C. in view of the bar under Section 199 of Cr.P.C.
When the respondent No.1 did not suffer any injury or felt hurt, though he is a member of Y.S.R. Congress Party, more particularly no defamatory imputations were made against the party or any of its members except against the President, he is not entitled to maintain the complaint against the petitioners herein. Accordingly, point Nos.1 and 2 are answered in favour of the petitioners against the respondents.
P O I N T Nos.3 and 4:
Petitioner No.1 is the owner and Managing Director of Amodha Publications Pvt. Limited and petitioner No.2 is the printer and publisher of Andhra Jyothi Telugu Daily. Specific allegation is made in the complaint that the petitioner No.1 is Managing Director of Amodha Publications Private Limited and having direct control of the publication and actively participating in day to day running of news paper and participating in the administration and selection of news item that are to be published in Andhra Jyothi News Paper. Undisputedly, petitioner No.1 is the Managing Director, whether he is a person, who is selecting news item is a fact to be decided.
Now, the controversy before this Court is whether the Managing Director or the Printer and Publisher are liable to be prosecuted for the offence punishable under Sections 500 and 501 of I.P.C.
Paper publication and books etc are governed by the Press and Registration of Books Act, 1867 (for short the Act) Section 1 (1) of the Act defined editor, which is as follows:
Editor means the person who controls the selection of the matter that is published in a newspaper.
Printing is also defined under the same section and it includes cyclostyling and printing by lithography.
Therefore, petitioner Nos.1 and 2 are not the editors as defined under Section 1 (1) of the Act. Certain rules are prescribed under Section 5 of the Act for publication of newspaper. Section 6 of the Act deals with Authentication of declaration.
In any legal proceeding whatever, whether civil or criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, [or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, [or printed on such newspaper, as the case may be] that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every [newspaper] whereof the title shall correspond with the title of the 2[newspaper] mentioned in the declaration, [or the editor of every portion of that issue of the newspaper of which a copy is produced] vide Section 7 of the Act.
Thus, when such declaration is given, the persons whose names are printed in the declaration are presumed to be the persons concerned with the publication of the newspaper. Therefore, the Managing Director/Executive Director of the publication or Printer or the Chief Editor, are not presumed to be the persons, who selected and published the news item.
Learned counsel for the petitioners while contending that the petitioner Nos.1 and 2 are not concerned with the selection of news item and publication, placed reliance on Narottamdas L Shah v. Subanali Nazarali (referred supra), where the editor of a paper writes an editorial which is highly defamatory of the spiritual head of a certain community, the Court held that an individual of that community is not an aggrieved person within the meaning of Section 199 of Cr.P.C. and that only the persons, whose names are printed on the paper in the declaration alone liable but none others.
This Court in I.Venkata Rao v. Afghan Khasim Sab while discussing scope of Section 7 of the Press and Registration of Books Act, 1867 held that the Presumption under Section 7 of the said Act can be raised only in respect of the Editor of the newspaper concerned. Unless it is shown that the petitioner was the Editor of the newspaper on the relevant date, no criminal liability for publication of alleged defamatory material can be fastened to him.
In K.M.Mathew v. K.A.Abraham (referred supra) the Apex Court while deciding the responsibility of Managing Editor, Chief Editor or Resident Editor held that there is no statutory immunity against Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. In all the cases, the complainants have specifically alleged that the appellants therein had knowledge of the publication of the alleged defamatory matter and they were responsible for such publication; and the Magistrate who had taken cognizance of the offence held that there was prima facie case against the appellants therein; it was under such circumstances that the Summonses were issued. Finally concluded that the provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complaint can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper.
Even to take cognizance, there must be some material to establish that the person other than Editor selected news items and published. Mere clever drafting of complaint by using legal skills of an advocate to entrap any other person other than Editor so as to enable the Court to take cognizance, is illegal.
It is true that judicial process should not be an instrument of oppression or needles harassment and the Magistrate while taking cognizance should be satisfied that there is a prima facie case against the accused and at that he should be circumspect and judicious in exercising discretion and should take all relevant facts into consideration before issuing process and that vindication of majesty of justice and maintenance of law and order in the society are the prima objects of criminal justice and it shall not be the means to wreak vengeance, but, at the same time, "the inherent power of the court under Section 482 Cr.P.C. should be very sparingly and cautiously used and only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. "So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage, it is not open either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out."[See: State of Bihar v. Rajendra Agrawalla ].
In Jacob Mathew v. Adangam Purath Kallada Gangadharan Nair the Kerala High Court decided the liability of any person connected with publication of newspaper other than editor. The petitioner therein Jacob Mathew allegedly published news item to defame the complainant. Caption of news item is that death of deceased and his mother who was sister of complainant are suspicious. The Court held that there is no specific allegation that petitioner was responsible for selection of news item or for its publication and no news item showing that complainant was responsible for their death, and quashed the proceedings based on the principle enunciated in K.M.Mathew v. K.A.Abraham (referred supra) Mohammad Koya v. Muthukoya , wherein the Apex Court held that the Press Act does not recognise any other legal entity except the Editor in so far as the responsibility of that office is concerned. In that case the Supreme Court found that the term "Editor" means a person who controls the selection of the matter that is published in a newspaper. Where a person's name is printed in the newspaper as its Editor it raises a rebuttable presumption only against the Editor.
Learned counsel for the respondent No.1 while contending that the petitioner Nos.1 and 2 are also liable for punishment being the persons who selected the news item and placed reliance on K.M.Mathew v. K.A.Abraham and S.Nihal Singh v. Arjan Das (referred supra), wherein the Delhi High Court held as follows:
In other words the printer or the publisher, as the case may be, who has made a declaration under the Act and the editor whose name appears on the copy of the newspaper shall be presumed to be aware of what is printed and published in the issue of the paper. The declaration is prima facie evidence of the publication by the editor of all the news items in the paper. He will not be absolved for the publication of objectionable matter by the mere fact that in the daily routine he had asked the editor/sub- editor etc. to select the news items. The term 'editor' is defined in the Act to mean person who controls the selection of the matter that is published in a newspaper. In the instant case the declaration printed at the bottom of the back page of the newspaper shows that the newspaper had been printed and published for the proprietors Indian Express Newspapers (Bombay) Private Limited by S. K. Kohli, petitioner No. 5 and S. Nihal Singh and Prabhat Joshi are Editor-in-Chief and Resident Editor respectively of the newspaper. Ex. facie a resident editor will be an associate of the Editor-in-Chief in the selection of news items and to that extent he is answerable on a charge of defamation. Hence in view of the foregoing provisions of law a presumption will arise against all three of them that they are printer, publisher. Editor-in-Chief and Resident Editor respectively of the newspaper and as such they are aware of the contents of offending news items. However, it is difficult to draw such a presumption in the case of other petitioners viz. Arun Shorie, petitioner No. 2 and A. M. Dar, petitioner No. 4. Their names do not find place in the declaration printed on the newspaper itself and there is no iota of evidence to show that they are in any manner concerned with the collection, control or selection of the matter printed in the newspaper. Their designations as Executive Editor/Editor of the Express News Service will not per se warrant an inference that they are in any way responsible for the selection of the material. An authority for this view may be found in State of Maharashtra v. R. B. Chowdhari .
Though the law laid down by Apex Court in K.M.Mathew v. K.A.Abraham (referred supra) and Delhi High Court in S.Nihal Singh v. Arjan Das (refererd supra) supports the case of respondent No.1, the later judgment in Jacob Mathew v. Adangam Purath Kallada Gangadharan Nair reviewed entire law on the liability of other person connected with the press other than Editor, but as per law declared therein Editor alone is liable for publication of any item in news paper. Therefore, in view of later judgment, except Editor, no other person is liable for prosecution prima facie.
Freedom of speech is a fundamental right guaranteed under Article 19 of Constitution of India, it is still not absolute. But freedom of press is inclusive of freedom of speech. But Article 19 (1) (a) of Constitution of India all citizens shall have right to freedom of speech and expression, but clause (2) of Article 19 is an exception, which says that nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Right under Article 19 (1) (a) of Constitution of India is not absolute and it is subject to clause (2) and defamation is an exception to it.
Just as every person possesses the freedom of speech and expression, every person also possesses a right to his reputation which is regarded as property. Hence, nobody can use his freedom of speech or expression as to injure anothers reputation. Laws penalizing defamation do not, therefore, constitute infringement of the freedom of speech. (Vide:E.M. Sankaran Namboodripad v. T. Narayanan Nambiar ) Similarly, freedom of press though not expressly contained in Article 19 of the Constitution of India or any other separate provision. It is implicit in the freedom of expression which is conferred on all citizens. It follows that this freedom cannot be claimed by a newspaper or other publication run by a non-citizen. The freedom of press, under our Constitution, is not higher than the freedom of an ordinary citizen. It is subject to the same limitations as are imposed by Article 19 (2) and to those limitations only. The press is not, accordingly, immune from
(a) the ordinary forms of taxation,
(b) the application of the general law relating to industrial relations,
(c) the regulation of the conditions of service of the employees,
(d) liability for exceeding the limits of fair reporting and fair comment, or to hold a trial by the Press, under the law of defamation or contempt of court, or the other constitutional limitations under Article 19 (2) of the Constitution.
(e) the law of contempt of court, (f) the regulation of the commercial activities of a newspaper,
without interfering with its freedom of expression,
(g) the law of privacy, subject to the conduct of public officials in the discharge of their official duties.
Freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as it would lead to disorder and anarchy.
Thus, the freedom of press though inclusive of Article 19 (1)
(a) of constitution of India, it is not absolute one and there are fetters of exercise of such right of freedom of press. The Apex Court in I.E.Newspapers v. Union of India observed that in today's free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities. The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India. Freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy be maintained and performed in terms of the democratic way of life laid down in the Constitution. (Vide: R. Rajagopal v. State of T.N. ) Therefore, in view of the observations made by the Apex Court in various judgments, it is crystal clear that the freedom of the press flows from the freedom of expression which is guaranteed to all citizens by Article 19(1)(a). Press stands on no higher footing than any other citizen and cannot claim any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen. The press cannot be subjected to any special restrictions which could not be imposed on any citizen of the country.
Thus, from the law laid down by the Apex Court in the judgments referred supra, it is clear that the press is entitled to claim right like any other citizen though playing vital role in the democracy for the benefit of people.
In Rajendra Sail v. Madhya Pradesh High Court Bar Association and Ors. the editor, printer and publisher and a reporter of a newspaper, along with the petitioner who was a labour union activist, were summarily punished and sent to suffer a six months imprisonment by the High Court. Their fault was that on the basis of a report filed by a trainee correspondent, they published disparaging remarks against the judges of a High Court made by a union activist at a rally of workers. The remarks were to the effect that the decision given by the High Court was rubbish and fit to be thrown into a dustbin. In appeal the Supreme Court held that it amounts to contempt and modified the sentence while upholding the contempt against them, but modified and reduced the sentence.
No one else has the power to accuse a judge of his misbehaviour, partiality or incapacity. The purpose of such a protection is to ensure independence of judiciary so that the judges could decide cases without fear or favour as the courts are created constitutionally for the dispensation of justice.( Vide: Dr. D.C. Saxena, Contemnor V. the Chief Justice of India ) Therefore, taking advantage of fundamental right of freedom of speech, which is inclusive of freedom of press, the Press cannot exercise right making defamatory imputation against any individual since the right under Article 19 (1) (a) is not absolute, but it is subject to clause (2). Hence, while publication of any news item, the editor of the paper, whose name is printed in terms of Section 5 of the Act in the declaration, take necessary care and caution otherwise editor will be held liable in view of presumption contained under Section 7 of the Act.
In the guise of freedom of speech guaranteed under Article 19 (1) of Constitution of India, the Press and Media making statements without even priliminarly enquiry against various burocrats and constitutional authorities and making such defamoatry statements drastically affecting reputation of individual cannot be permitted in view of caluse (2) of Article 19 of the Consitutiton of India.
Merely because there were no guidelines for publication of news items, the press cannot exceed its limits and publish news items at their pleasure, since print media have a great responsibility also to see that the news they present is accurate and serve the interest of the people. If the print media convey false news that may harm the reputation of a person or a section of society, it may do great damage since reputation is a valuable asset for a person. Even if the media subsequently correct a statement, the damage done may be irreparable. Hence, the media should take care to carefully investigate any news item before reporting it. Sometimes the media present twisted or distorted news that may contain an element of truth but also an element of untruth. This, too, should be avoided because a half-truth can be more dangerous than a total lie. The media should avoid giving any slant to news, and avoid sensationalism and yellow journalism. Only then, will they gain the respect of the people and fulfill their true role in a democracy. Often the media publishing correct news but place too much emphasis on frivolous news such as those concerning the activities of political leaders etc while giving very little prominence to much more important issues that are basically socio-economic in nature. Unless print media and electronic media bound to act within the journalism ethics, it is difficult to control unlawful activities like paid news etc., making distorting remarks against individual without any truth make the public to believe those news and drove them in a wrong direction would be more dangerous than to publish any news item. The print media has to maintain restract in publishing inferential or initiative news to lead the public in wrong direction.
Media became powerful tool in the hands of the people, because they could not express themselves through the established organs of power: those organs were in the hands of feudal and despotic rulers. Hence, the people had to create new organs that would serve them. It is for this reason that the print media became known as the Fourth Estate.
Similarly, publishing untrue statements or pitruzzella (drama, creativity and intersubjectivity) indicates that the government should regulate news and speech so as to avoid information overload and group polarization. A better way to pursue this would be through education, awareness-building and training, so the importance of being exposed to other points of views and acquire the necessary tools to find out whether the information presented is false or not. Therefore, before publishing any news item, they must ensure that statements made in the news item are true and based on some material. But as on today there was no control over the press and media and making such statements against one or the other persons, whom they wish, sometimes tarnishing the esteem of those persons in the eye of public, obviously for different reasons best known to them. Some of the political parties either running or sponsoring the print media for their political purpose, publishing various news items stinging mud on the rival political parties and it became the order of the day in politics.
Journalists' main goal is to ensure the right of citizens to truthful and important information, which allows them to form adequate impression or opinion about social processes, their essence and importance, about the situation in the modern world.
In the present case, serious allegations were made against an individual political leader i.e. Y.S.Jagan Mohan Reddy, President of Y.S.R. Congress Party, adopting unethical standards of journalism. Journalist is bound to bear the responsibility before the society in general and public and before the professional associations. Though, there are no guidelines governing or controlling such pitruzzella or publishing such news.
Mass media freedom is one of the major guarantees of the freedom of speech, an obligatory element for ensuring other civil rights and freedoms. The freedom of the press involves the possibility to freely discuss and criticize the activities of both the authorities and civil and private structures. Journalists contribute to the realization of the right to express unpopular opinions or agree with the point of view expressed by the majority.
The journalist must defend the freedom of speech; retain independence of his/her political views and convictions. He/she must resist any efforts to distort information or introduce censorship.
Like any other citizen, the journalist has a right to political and other convictions. However, in his/her professional activity he/she should remain neutral and objective.
Respecting the right of society to objective information, the journalist must convey truthful information and a whole spectrum of opinions on certain issues. The news should be based on facts and information where truthfulness can be checked. The journalist should do his/her best to obtain information from all possible sources, to make sure it is complete, truthful and unbiased. Information which may offend or humiliate a person should be checked especially carefully.
Information should be obtained in legal and ethical ways. When requesting information, the journalist must introduce himself/herself, name the media outlet that he/she represents, inform the interlocutor that his/her words may be published, except in cases when the information is confidential or impossible to obtain officially. Trust must not be abused. In case of tragedies that have caused someone shock or oppressed condition, the journalist must interview the person carefully and with patience.
When gathering information, journalists may not misrepresent themselves. Journalists' search for information by hidden means can be justified only in cases when the information in question is of major importance for society and cannot be otherwise obtained.
Materials obtained by means of tapping should not be published. The journalists must keep secret the sources of confidential information FEW GENERAL PRINCIPLES OF PUBLICATION ARE STATED AS UNDER:-
a) Journalists should present the facts and preserve their true meaning, demonstrate the major links and not allow distortions.
b) Unbiased journalism does not mean that the journalists should abstain from expressing their personal opinions.
However, the reader should be able to tell the difference between the articles stating facts and materials expressing someone's opinion or interpretation of events. However, this principle should not limit the journalist in choosing the style of writing.
c) The journalist should not be a spokesman for an egoistic private or group interest. He/she should contribute to mass media's objective coverage of the pluralism of opinions. It is not allowed to hide publicly important information or distort the facts.
d) Bias in commentary is a violation of the principles of journalistic ethics.
e) Preparation and writing of analytical materials and commenting on certain events should be performed by journalists whose competence and experience correspond to the task in hand.
f) People featured in the articles should be characterized by race, religion, nationality and status only in cases when it is important for the correct understanding of the material.
g) Headlines and subhead lines of newspaper articles should correspond fully to the contents of the article, photographs and video materials should clearly illustrate the events, instead of presenting them out of context.
h) Unconfirmed information, rumours and conjecture should be marked as such. Symbolic illustrations (photomontage, restorations, similar motives recorded in other time periods) should be clearly recognizable or have corresponding tags.
i) When stating facts, commenting on them or entering a discussion on a certain issue, journalists should stick to the ethics and principles of a dialogue and express respect for the discussion partner.
Editor herein though bound to create certain limitations i.e. self restraints to publish news items and failed to follow the minimum ethics of journalist, which I referred above.
Turning to the facts of the present case, petitioner No.1 is the Managing Director of Amodha Publications Private Limited i.e. owner of the Andhra Jyothi daily newspaper. Specific allegation is made against him that he is participating in day to day affairs of publication of newspaper in the paper and in selection of news item also. Generally, the editor alone will select and publish news item as defined under Section (1) of the Act and the Act also did not recognize any other person except Editor of news paper. But the complaint was drafted in such a way to attach responsibility to the petitioner No.1 cleverly as if he was playing the role of Editor, but no piece of paper is produced prima facie to show that petitioner No.1 is the person, who is selecting the news item though participated in the management of the Amodha Publications Private Limited. The intelligent drafting or artistic drafting of complaint to make a person responsible for the offence without any piece of paper in support of such allegation, it is difficult to hold that the petitioner No.1 is liable for such prosecution, being the Managing Director and not as Editor of the paper.
The High Court of Gauhati in Sri Jayanta Baruah and Sadhin Printers represented by the Proprietor, Sri Jayanta Baruah v. Sri Dilip Baruah noted the contentions of the counsel for the petitioners in paragraph No.7 as to when the Chief Editor, Executive Editor and the printer and Publisher, against whom presumption can be drawn, are named as accused persons, taking of cognizance against the present petitioners in absence of any averments in the complaint petition about their knowledge or any role in the publication of the said news item, is not sustainable in law and held as follows:
It is to be noted selection of news item cannot amount to making of news. Editor selects the news and the printer and publisher publish the news item. Publication of imputation alone constitutes an offence under section 499 IPC.
16. There is no presumption that an owner of a newspaper is responsible for the publication of any defamatory matter published in his newspaper. A liability for publication can be fastened on him if there some materials to show that he had prior knowledge or that he was somehow connected with the publication of the defamatory news item. Same is the position with regard to the proprietor of a press where an alleged defamatory article or news item is printed.
In view of the law declared by the High Court of Gauhati in Sri Jayanta Baruah and Sadhin Printers represented by the Proprietor, Sri Jayanta Baruah v. Sri Dilip Baruah (referred supra), the petitioner No.2 being the Printer and Publisher is also not liable for prosecution as he was not the person, who selected the news item, that apart no specific allegation is made against him excepting alleging that petitioner No.2 is the Printer and Publisher, Andhra Jyothi Telugu Daily being published on behalf of Amodha Publications Private Limited at Amodha Press, Ashwini Layout, Huda Heights, Road No.70, Jubilee Hills, Hyderabad, Telangana State. This allegation is not sufficient to conclude that he is the person responsible for such publication of imputation amounting to defamation against Y.S.R. Congress Party or against Y.S.Jagan Mohan Reddy, President of Y.S.R.Congress Party. Persuaded by the principles laid down in the above judgments, he cannot be held responsible for such publication.
Petitioner No.3 is the Editor of Andhra Jyothi Telugu Daily, petitioner No.4 is the Bureau Chief, Telangana Edition, petitioner No.5 is the Reporter, Andhra Jyothi Telugu Daily, petitioner No.6 is the Bureau in-charge, Andhra Jyothi Telugu Daily, Andhra Edition, Krishna District, petitioner No.7 is Bureau in-charge, Andhra Jyothi Telugu Daily, Telangana Edition. The allegation made against them in the complaint is that petitioner No.5 reporter formulated the news item for being published before the petitioner Nos.1 to 4 and 6 and 7, they selected the news item to be published before it takes shape and appear in the news paper.
For this allegation, no prima facie material is produced to substantiate this contention. The duty of the reporter is to collect news item and give it to the Editor for publication and the Bureau- in-charge is not the person concerned with selection of news item and publication in newspaper, only Editor will select and publish news item and at best the liability can be attached against the Editor of the Newspaper, whose name is printed in the declaration as required under Section 5 of the Act. Therefore, the Editor of the paper i.e. petitioner No.3 alone to be proceeded for the offence punishable under Section 500 or 501 of I.P.C. subject to maintainability of complaint, making out requirements to constitute such offence. Therefore, I hold that except petitioner No.3, no others are responsible for publication of news item in Andhra Jyothi dated 15.05.2017 and 16.05.2017. Accordingly, the point Nos.3 and 4 are answered.
As discussed above and in view of the law, the respondent No.1 is incompetent and has locus standi to file the complaint being M.L.A. of Mangalagiri constituency as a candidate of Y.S.R. Congress Party and he is not a person aggrieved as enunciated under Section 199 of Cr.P.C. Respondent No.1 is also incompetent to file a complaint being a member when the imputation is made against unidentifiable or indeterminate group of persons, even otherwise imputations are made only against Y.S.Jagan Mohan Reddy, president of Y.S.R. Congress Party and not against any member or against the Party except referring the name YCP in the news item dated 16.05.2017.
The other ground is that the petitioner Nos.1, 2 and 4 to 7 are not liable to be prosecuted for the offence punishable under Section 500 and 501 of I.P.C. as no piece of prima facie material is produced to substantiate the contention that they selected the news item for publication in Andhra Jyothi Telugu Daily dated 15.05.2017 and 16.05.2017 and the presumption under Section 7 of the Act applies only to petitioner No.3. Petitioner No.3 is also not liable to be proceeded for the said offence for the reason that the complainant has no locus standi to file a complaint and that the alleged defamatory statement is only against Y.S.R.Congress Party and not against any other person to claim as person aggrieved. Accordingly, these two points are held against respondent no.1 and in favour of the peititoners The respondent No.1 filed private complaint against all the petitioners for the offence punishable under Section 500 and 501 of I.P.C. and the Court without insisting any piece of evidence took cognizance of the offence and issued summons to the petitioners to appear before the Court. Issuing summons is a matter of serious consequence as held by the the Apex Court in Maksud Saiyed v. State of Gujarat , Maharashtra State Electricity Distribution Company Ltd. v. Datar Switchgear Ltd. Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors.
In Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors., (referred supra), the Apex Court observed as follows:
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
In view of law declared by Apex Court, the duty is cast upon the Magistrate to apply his/her mind to the facts and evidence, both oral and documentary produced along with the complaint. But, here the Magistrate recorded sworn statement of respondent No.1, who reiterated the allegations made in the complaint in verbatim and the Court took cognizance of the offence against the petitioners by passing a cryptic order dated 08.10.2017, which runs as follows:
Heard the petitioners counsel, perused the material on record. After keen reading of case facts and on careful analysis of merit of case, it is seen that a prima facie case is made out against A.1 to A.7. Register as C.C.No.791 of 2017 against A.1 to A.7. Issue summons to A.1 to A.7. Call on 14.11.2017.
This order of taking cognizance does not disclose application of mind to the facts of the case by the Magistrate before taking cognizance and the Magistrate did not verify the material in support of the allegations made against each of the petitioners and their liability for such publication of news item in the Andhra Jyothi Telegu Daily. When the Magistrate did not exercise his duty as laid down by the Apex Court in Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors., (referred supra). The order of taking cognizance is illegal. Even if, the order is ignored still there is no material to proceed against the petitioner Nos.1, 2 and 4 to 7, who are Managing Director, Printer and Publisher, Reporter, Bureau in-chare etc since the Press and Registration of Books Act, 1867 did not contain any provision to attach vicarious liability against the Managing Director and others of the Amodha Publications Private Limited for the acts done by the Editor, apart from that the presumption under Section 7 is not against petitioner Nos.1, 2, 4 to 7 and the Magistrate did not advert to the criminal liability of all these petitioners while proceeding to issue summons after taking cognizance of the offence, and the Magistrate passed a mechanical order and issued summons to the petitioners.
Section 482 of Cr.P.C. saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a court has authority to make any order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the court should have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the court exists, namely to promote justice and to prevent injustice.
The essential object of the criminal law is to protect society against criminals and law breakers. For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer with prescribed punishment for the offences they committed and at the same time, the procedure is intended to protect the innocent people from unlawful prosecutions at the threshold itself, to avoid peril of facing arduous trial. Thus, Section 482 of Cr.P.C. vests unbridled power on the courts to exercise its jurisdiction to give effect to an order under the Code or to prevent abuse of the process of Court or to otherwise secure the ends of justice. The Code also controls and regulates the working of the machinery set up for the investigation and trial of offences. On the one hand it has to give adequately wide powers to make the investigation and adjudicatory processes strong, effective and efficient, and on the other hand, it has to take precautions against errors of judgment and human failures and to provide safeguards against probable abuse of powers by the police or judicial officers. This often involves a nice balancing of conflicting considerations, a delicate weighing of opposing claims clamouring for recognition and the extremely difficult task of deciding which of them should predominate. Thus, the Code obviously conferred power under Section 482 of Cr.P.C. to quash the proceedings in crime/calendar case by conferring inherent power on the High Courts of all the States being higher court of the State.
In State of Haryana v. Bhajan Lal the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
According to guideline Nos. 1 to 3 formulated in State of Haryana v. Bhajan Lal (referred above), if the allegations made in the charge sheet or F.I.R., taken on their face value, would not constitute any offence or absurd or if the charge sheet is filed to wreck vengeance against the accused, abusing process of the Court, the Court may exercise the inherent jurisdiction under Section 482 of Cr.P.C.
In view of my foregoing discussion, I find that it is a fit case to quash the proceedings by exercising power under Section 482 of Cr.P.C.
In the result, the petition is allowed and the proceedings in C.C.No.791 of 2017 on the file of the XVII Chief Metropolitan Magistrate, Hyderabad are hereby quashed. No costs.
Consequently, miscellaneous petitions pending, if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 05.01.2018