Himachal Pradesh High Court
Pevinder Kumar vs Manoj Joshi & Another on 4 August, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.M.M.O No.532 of 2019
Date of Decision: August 4, 2023
Pevinder Kumar ...Petitioner.
.
Versus
Manoj Joshi & another ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
of
Whether approved for reporting?1 Yes
For the Petitioner: Mr. Kulbhushan Khajuria, Advocate.
For the Respondents: Mr.Bimal Gupta, Senior Advocate,
rt alongwith Mr.Satish Sharma, Advocate, for
respondent No.1.
Mr.Ashish Verma, Advocate, for respondent
No.2.
Vivek Singh Thakur, J.
The instant petition, invoking provisions of Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC'), has been preferred for quashing proceedings pending in the Court of Judicial Magistrate First Class, Nahan, District Sirmaur, in Complaint No.13/2 of 2019, titled as Manoj Joshi vs. Divya Himachal and another, under Sections 500, 501 and 120B read with Section 34 of the Indian Penal Code (in short 'IPC').
2. The matter in brief, in issue, is that in July 2017 an FIR No.97 of 2017, dated 06.07.2017 was registered in Police Station Kotkhai, District Shimla, H.P., under Sections 302, 376 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act'), regarding an 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/08/2023 20:36:13 :::CIS 2unfortunate incident of rape and murder of a minor school girl. At that time, respondent No.1 was working as Sub-Divisional Police Officer, Theog, District Shimla, H.P. and was Supervisory Officer .
of Police Station Kotkhai, District Shimla, H.P. During investigation, a suspect, arrested by the police, died in Police Station and on account of that custodial death, an FIR No.101 of 2017, dated 19.07.2017 was also registered in Police Station of Kotkhai. Lateron, investigation of both cases was handed over to Central Bureau of Investigation (CBI) and, on 22.07.2017 CBI re-
registered aforesaid cases as RC.8(S)/2017/CBI/SC-1/New Delhi, rt under Sections 302, 376 of IPC and Section 4 of POCSO Act and case No.RC.9(S)/CBI/SC-1/New Delhi, with respect to custodial death of accused.
3. A matter related to the aforesaid incidents, was also pending adjudication before the Division Bench of the High Court of Himachal Pradesh, wherein CBI was filing status reports and the Court had also implicated Police Officers Zahoor Zaidi, Deep Chand, Manoj Joshi (petitioner), Rajinder Singh, Bhajan Dev Negi, Rattan Singh, Dharam Sain and Rajiv Kumar, as respondents with a direction to them to file their individual affidavits for placing on record their version in the matters.
4. Respondent No.1 was made an accused by CBI in case No.RC.9(S) of 2017 for custodial death of a suspect in Police Station Kotkhai. Admittedly, he was not an accused in another case RC.8(S) of 2017 registered under Sections 302, 376 IPC and Section 4 of POCSO Act.
::: Downloaded on - 04/08/2023 20:36:13 :::CIS 35. In the matter pending in the High Court, CBI had moved an application demanding copies of personal affidavits filed by above referred officers arrayed as respondents in the .
High Court proceedings. With respect to Court proceeding, a news item was published in Divya Himachal on 14.09.2018 with tagline of Legal Correspondent, Shimla. English translation whereof, placed on record in complaint filed by respondent No.1 of before Judicial Magistrate First Class, is as under:-
"CBI demands personal affidavits.
Investigation agency submitted fresh status report on Kotkhai incident.
rt Legal Correspondent, Shimla.
In Kotkhai school girl's rape and murder case, CBI submitted fresh status report before High Court on Thursday. Bench comprising, acting Chief Justice Sanjay Karol and Justice Sandeep Sharma, after perusal of the report, handed over sealed report to Registrar General. In this case, an application has been filed by the CBI, wherein CBI has demanded the personal affidavits filed by the accused. As per the facts mentioned in the application filed by the CBI, Zahoor Zaidi, Deep Chand, Manoj Joshi, Rajinder Singh, Bhajan Dev Negi, Rattan Singh, Dharam Sain and Rajiv Kumar were made respondents by the High Court on 17th August 2017 and they were ordered to file their personal affidavits regarding investigation. Then on 24th August 2017, all these accused filed their personal affidavits in High Court. By way of reply the Court was informed that in Kotkhai school girl's rape and murder case, Charge sheet has been filed on 29th May 2018 and charge under section 302, 376(2) of IPC and Section 4 of POCSO Act has been framed against them. By way of reply CBI has demanded personal affidavits filed by all the accused before the High Court. The Bench has fixed 14th September as date of hearing on this application. Thus the case will also be heard on Friday."::: Downloaded on - 04/08/2023 20:36:13 :::CIS 4
6. Another news item was published in Divya Himachal Hindi Daily News Paper on 15.09.2018, English translation whereof, reproduced in complaint, is as under:-
.
"A free-translation of this news in English is as under:
Judgment reserved in Kotkhai rape and murder case. Legal Correspondent, Shimla.
In Kotkhai school girl's rape and murder case, the Himachal High Court has reserved its judgment on the application filed by the CBI. As per this application, CBI had demanded the personal affidavits filed by the accused. Regarding this, the of CBI has filed an application wherein CBI has demanded the personal affidavits filed by the accused. As per the facts mentioned by the CBI in the application, Zahoor Zaidi, Deep rt Chand, Manoj Joshi, Rajinder Singh, Bhajan Dev Negi, Rattan Singh, Dharam Sain and Rajiv Kumar were made respondents by the High Court on 17th August and they were ordered to file their affidavits regarding investigation. All these accused filed their affidavits in the High Court on 24th August. By way of reply the Court was informed that in Kotkhai school girl's rape and murder case, Charge sheet has been filed on 29th May 2018 and charge under Section 302, 376(2) of IPC and Section 4 of POCSO Act has been framed against them on 15th June 2018. By way of reply CBI has demanded personal affidavits filed by all the accused before the High Court. The matter was placed before the Bench comprising of acting Chief justice Sanjay Karol and Justice Sandeep Sharma on Friday."
7. Accused No.1 is News Paper itself through its Editor, Printer and Publisher. Whereas, accused No.3 is Legal Correspondent, who is petitioner herein, in this petition.
8. Quashing of proceedings on behalf of Legal Correspondent has been advocated on the ground that report published in the News Paper was a report of an incident. Further ::: Downloaded on - 04/08/2023 20:36:13 :::CIS 5 that, respondent No.1 is an accused in the matter of custodial death and not an accused in case of rape and murder of a minor girl and charges have been framed against a person, who was .
named as an accused in Charge sheet filed in rape and murder case. Whereas, petitioner is not an accused in that case and, therefore, news item pertaining to FIR of rape and murder case cannot be referred to be a statement related to petitioner and of there is no name of the officer, who refused to undergo Narco Test and news item related to Narco Test nowhere suggests that this news item was related to respondent No.1 Manoj Joshi.
rt Therefore, complaint, on the basis of news item dated 15.09.2018, is not sustainable.
9. It has further been submitted on behalf of the petitioner that petitioner was duty bound to publish news report indicating actual and factual situation for consumption of his readers and further there was no intention or malafide intention of the petitioner to tarnish reputation of respondent No.1 as petitioner was also of the opinion that behaviour of respondent No.1 to the general public is good and he has taken keen interest in the matters of general public. But at the same time, petitioner cannot fail to discharge his bounded duty to publish news report.
It has further been submitted that matter in present case is covered under exception and publication of news item is based on facts and such news item cannot be said to be defamatory because the basic element of intent or malafide intention to tarnish reputation of respondent No.1 is missing. It has further ::: Downloaded on - 04/08/2023 20:36:13 :::CIS 6 been submitted that respondent No.1 is not an accused in rape and murder case, and news item cannot be connected with him and, therefore, complaint filed by respondent No.1 is .
misconceived and without any cause of action against the petitioner.
10. Learned counsel for the petitioner, referring Section 7 of the Press and Registration of Books Act, 1867, has of contended that provision of this Section creates presumption against the Editor of the Newspaper but not against the Reporter, and, therefore, it has been contended that in absence rt of any presumption against the petitioner, the complaint is not maintainable and the Magistrate has committed mistake by issuing process against the petitioner. It has been contended on behalf of the petitioner that he petitioner has no intention to defame respondent No.1, rather petitioner has high opinion about the character and reputation of respondent No.1 and, thus, in absence of intention to defame respondent No.1, on the part of petitioner, issuance of process against the petitioner is not sustainable.
11. Learned counsel for the petitioner has also referred pronouncements of the Supreme Court in K.M. Mathew vs. State of Kerala and another, (1992) 1 SCC 217; K.M. Mathew vs. K.A. Abraham and others, AIR 2002, SC 2989; Adalat Prasad vs. Rooplal Jindal and others, (2004) 7 SCC 338; and Gambhirsinh R. Dekare vs. Falgunbhai Chimanbhhai Patel and another, (2013) 3 ::: Downloaded on - 04/08/2023 20:36:13 :::CIS 7 SCC 697; to substantiate the plea raised on behalf of the petitioner.
12. Learned counsel for respondent No.1 has contended .
that news item dated 14.09.2018, referred supra, giving clear impression that Manoj Joshi alongwith other police officials is an accused in rape and murder case related to minor school girl and in that case, their affidavits have been demanded by CBI with of statement that Charge sheet against them stands filed on 29.05.2018 and charges have been framed against them under Sections 302 and 376(2) IPC and Section 4 of POCSO Act.
rt Further that, this news item nowhere suggests that there are two cases and petitioner is an accused in a case of custodial death.
Whereas, as a matter of fact a different person is sole accused in rape and murder case. According to learned counsel, language of news item depicts that all the persons mentioned in the news item are accused under Sections 376(2), 302 of IPC and Section 4 of POCSO Act and Charge sheet against them stands filed and they have been chargesheeted under the aforesaid sections.
13. Learned counsel for respondent No.1 has submitted that for creating a presumption against Editor, under Section 7 of Press and Registration of Books Act, 1867, it cannot be that no other person can be prosecuted for an act causing defamation of a person. It has been contended that in present case, in the complaint, it has been specifically averred that petitioner and respondent No.3 had conspired to defame complaint -
respondent No.1 and in furtherance thereof New item, referred ::: Downloaded on - 04/08/2023 20:36:13 :::CIS 8 hereinabove, was published in the Newspaper with intention to harm the reputation of complainant-respondent No.1. Therefore, it has been contended that there was sufficient material for .
issuing process against the petitioner by the Magistrate.
14. Section 7 of the Press and Registration of Books Act, 1867 creates presumption against an Editor. But, it does not mean that no other person can be prosecuted except the Editor.
of The ratio of judgments, referred on behalf of the petitioner, is that presumption against the Editor is rebuttable presumption and further hat persons other than Editor, responsible for rt publication, with intent to harm reputation of a person can be prosecuted by placing on record material to prosecute such person and, Section 7 of the Pres and Registration of Books Act, 1867 does not prohibit prosecution of a person in a deflation case, other than the Editor. Therefore, provisions of Section 7 of the Press and Registration of Books Act, 1867 would not held the petitioner at this stage.
15. In the judgments referred on behalf of the petitioner, it has been propounded that for issuance of process against respondent/accused, the Magistrate has to see sufficiency of material on record so as to prima facie suspect commission of offence and that, at this stage, accused-petitioner had no role to play because decision to dismiss the complaint or issuance of process against the accused has to be taken by the Magistrate on the basis of material placed on record by the complainant by way of complaint and the evidence alongwith the complaint.
::: Downloaded on - 04/08/2023 20:36:13 :::CIS 9Accused has a right to raise all contentions with respect to material placed on record at the stage of framing of Charge or putting Notice of Accusation.
.
16. On the material placed before me, it appears that after filing of criminal complaint, preliminary statements of respondent No.1-complainant and other witnesses were recorded by the Magistrate and, thereafter, matter was sent for inquiry to of the police under Section 202 Cr.P.C. In sequel to order of the Magistrate, SHO Police Station, Nahan, had contacted complainant and recorded his statement and had collected rt relevant record from him. Thereafter, SHO visited the office of respondent No.2-Divya Himachal, where its Editor Anil Sharma refused to make any statement and to disclose any fact and even to disclose name of Legal Correspondent on whose report news item was published in Divya Himachal, and SHO had filed his report in the Court of Judicial Magistrate First Class, Nahan, District Sirmaur. To substantiate his visit to the office of Divya Himachal, Investigating Officer had placed reliance upon the Daily Diary Report recorded in Police Station Gaggal, District Kangra, H.P., related to his movement and also photocopy of Gate Entry-cum-Visitor Register, including his stay and entry in the office of respondent No.2-Divya Himachal.
17. After taking into consideration material placed before the Magistrate, detailed order dated 02.07.2019, has been passed summoning the accused persons i.e. petitioner and respondent No.1 in the Court of Magistrate. It may be difficult to ::: Downloaded on - 04/08/2023 20:36:13 :::CIS 10 connect respondent No.1 with news item dated 15.09.2018, if the said news item is read in isolation, whether it can be linked with first news item dated 14.09.2018 or not, it is a debatable .
issue to be contested by parties before the Trial Court. Even if this news item is ignored then also from the material placed before me, it cannot be said that there is nothing on record to, at least, suspect commission of offence. Whether offence has been of actually committed or not and has been committed by petitioner and respondent No.2 or not or as to whether petitioner has not committed any offence under Sections 500, 501 and 120B read rt with Section 34 of IPC or not, all these issues are not to be considered at this stage. At this stage, only consideration for the Magistrate would be that whether on the basis of material placed before him, it can be suspected by the Magistrate that accused persons named in the complaint or Charge sheet can be suspected to have committed an offence or not, and in case material is sufficient to suspect commission of offence by the person named as an accused in the Charge sheet or private complaint, Magistrate has no option except to summon the accused. Whether such material shall be sufficient for framing of Charge or putting Notice of Accusation or not is a different matter, which has to be considered by the Magistrate at appropriate stage and at that stage, accused persons shall have right to contest the case by raising all issues being raised in present petition alongwith other issues, if any, in addition or independent thereto because at that stage required degree of ::: Downloaded on - 04/08/2023 20:36:13 :::CIS 11 evidence should be so as to arrive at a conclusion that prima facie case has been made out. In case evidence is not sufficient even to make out a prima facie case, proceedings have to be .
closed at that time. It is apt to record that at the time of issuing summons or framing of Charge or putting Notice of Accusation, assessment of material on record is not to be evaluated so as to assess its evidentiary value sufficient to convict accused of persons.
18. For taking cognizance or issuing of notice it would be suffice that material on record suggests that person, named in rt the Charge sheet, is a suspect of commission of offence.
19. In present case, I find that there was sufficient material on record to issue process against the petitioner and respondent No.2, as it is not a case where on the face of it, it can be said that no case is made out, even to suspect commission of offence as alleged in the complaint.
20. Whether contention of the complainant, reproduced in the complaint placed on record, is sufficient to frame charges against petitioner or not is a question to be determined by the Magistrate at the time of framing of Charge/putting Notice of Accusation and, therefore, I am refraining myself from adverting to adjudication of various claims and counter claims made by complainant and respondent party, and to express any comments on merit thereon as it may cause prejudice to either party during trial. But at the same time, on the basis of material on record, I am of the considered view that there was sufficient ::: Downloaded on - 04/08/2023 20:36:13 :::CIS 12 material to issue process against accused persons, but that process shall withstand the stages of framing of charges/putting Notice of Accusation or not, is an another issue.
.
21. In a trial, the Trial Magistrate is empowered to consider plea of an accused at the stage of framing of Charge or putting Notice of Accusation. In case on the basis of material placed on record by the accused or prosecution or otherwise, it is of found that the case of the complainant/prosecution completely stands vanished and there is no sufficient material to frame the Charge or put rt Notice of Accusation the Magistrate has jurisdiction, to dismiss the complaint or prosecution case. If the is no sufficient material to fulfill the requirement of framing the Chare or put Notice of Accusation or the ingredients necessarily required to frame the Charge or put the Notice of Accusation are missing, the Trial Court has jurisdiction to dismiss the complaint.
22. No doubt, in its concluding part of order dated 02.07.2019, passed by the Magistrate, it has been recorded by the Magistrate that accordingly accused persons have committed offence punishable under Sections 500, 501 and 120B IPC. On this count, Magistrate has committed a mistake by recording that accused persons have committed offence instead of recording that from material placed before him it can be suspected that accused persons are involved in commission of offence in reference. It is clear from the perusal of order passed by the Magistrate that intention and conduct of Chief Judicial Magistrate, Sirmaur at Nahan, was not to declare that accused ::: Downloaded on - 04/08/2023 20:36:13 :::CIS 13 persons have committed offence, but she had recorded her version as recorded in earlier part of last paragraph of complaint that complainant has been able to establish prima facie case .
against accused persons, at least to suspect.
23. After taking into consideration material placed before me, information supplied by both parties and provisions of law, I am of the considered opinion that there is no merit in the case, of and the case of the petitioner and the contentions raised on behalf of the petitioner are required to be raised before the Magistrate on next date of hearing.
rt
24. No further notice shall be issued by the Magistrate for presence of parties, who already stand served. Parties are directed to appear before the Magistrate on 31.08.2023. Parties shall be at liberty to raise all contentions and grounds before the Magistrate, which have been raised here and have not been answered being irrelevant or have been raised premature but were to be raised at appropriate stage.
25. Petition is dismissed accordingly, so also pending application(s), if any.
( Vivek Singh Thakur), Judge.
August 4, 2023 (Purohit) ::: Downloaded on - 04/08/2023 20:36:13 :::CIS