Allahabad High Court
Mr.R.P.Goenka Chairman M/S The ... vs State Of U.P.And Another on 22 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1985, 2020 (2) ALJ 300
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 22.08.2019 Delivered on 22.10.2019 Court No. - 34 1. Case :- APPLICATION U/S 482 No. - 960 of 1997 Applicant :- Mr. R.P.Goenka Chairman M/S The Gramophone Com.And Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- S.Trivedi, Mohit Singh, Shashank Shekhar Mishra, Shiv Kumar Singh Rajawat, Saumya Chaturvedi, Tanisha J. Munir Counsel for Opposite Party :- A.G.A., A.K.Awasthi, Manish Tiwari, V.C.Tewari, Nikhil Chaturvedi 2. Case :- APPLICATION U/S 482 No. - 1910 of 1997 Applicant :- Mr. Sanjeev Goenka Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Satish Trivedi, K.K.Mishra, Mohit Singh, Shashank Shekhar Mishra, Shiv Kumar Singh Rajawat, Saumya Chaturvedi, Tanisha J. Munir Counsel for Opposite Party :- A.G.A., A.K.Awasthi, Manish Tiwari, V.C. Tiwari, Nikhil Chaturvedi Hon'ble Sudhir Agarwal,J.
1. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Ms. Saumya Chaturvedi, Advocate and Sri Arvind Verma, learned Senior Advocate assisted by Ms. Tanish J. Munir, Advocate for applicants and Sri Nikhil Chaturvedi, learned A.G.A. for State as well as Sri Manish Tiwari, Advocate for Complainant-Respondent.
2. Both these applications have been filed against same proceedings pending in the Court of 9th Additional Chief Judicial Magistrate, Ghaziabad, hence were heard together and are being decided by this common judgment.
3. Application No. 960 of 1997 has been filed by 12 applicants with a prayer to quash Complaint No. 447 of 1996 filed by Respondent-2 in the Court of 9th Additional Chief Judicial Magistrate, Ghaziabad and entire proceedings including Criminal Case No. 2234 of 1996 as also bailable warrant dated 11.09.1996 issued by Magistrate concerned against applicants.
4. Applicant-1 is the Chairman of M/s Gramaphone Company of India Ltd. (hereinafter referred to as "GCIL") having its registered office at 33, Jessore Road, Dumdum, Calcutta. Applicants-2, 5, 7, 8, 9 and 11 were Directors of GCIL when application was filed and Applicants-4, 6 and 12 were former Directors having ceased w.e.f. 07.03.1996, 30.11.1995, and 01.011.1995 respectively. Similarly Applicants-3 and 10 were Directors and ceased to be so w.e.f. 15.11.1996 and 28.06.1996 respectively.
5. GCIL is engaged in the business of manufacturing and marketing of Sound Recordings, Audio Cassettes and Compact Discs etc. with the Trademark Logo "HMV". In 1994 GCIL got copy right ownership of sound track recordings, lyrics and musical composition in respect of film "Hum Apke Hain Kaun". Towards end of December, 1994 M/s Super Cassettes Industries Ltd., i.e., Respondent-2 also introduced Audio Cassettes of aforesaid film infringing copy rights of GCIL. It resulted in a litigation inasmuch as GCIL filed Suit No. 2924 of 1994 in Delhi High Court.
6. Respondent-2, i.e., Complainant, filed a complaint under Sections 500, 501, 502 read with Sections 34 and 120B IPC against all the applicants and five others stating that a news item was published in "The Economic Times" dated 10.05.1996 with the title "Gramaphone Co-accuses T-Series of faking HMV cassettes" and published a defamatory article/ news item, in connivance and conspiracy of accused, against Chairman and Managing Director, Sri Gulshan Kumar and Company. The said news item reads as under:
"Gramaphone Co accuses T-Series of faking HMV cassettes Mr. Sanjiv Goenka, vice-chairman, The Gramaphone Company of India Ltd. (GCIL), today accused T-Series of faking HMV audio cassettes.
Talking to reporters after the company's extraordinary general meeting, Mr. Goenka said some 65,000 cassettes of the popular Hindi film 'Hum Apke Hain Kaun' were seized from the premises of T-Series in January.
T-Series, which has emerged as possibly the fastest growing music company, is owned by Mr. Gulshan Kumar.
Attacking the organization, Mr. Goenka said: "T-Series is hampering the Gramaphone Company in fighting the counterfeit problem."
Already, a similar case between the two companies is pending before the Delhi High Court.
Earlier, during the meeting the GCIL board passed the special resolution for restructuring the company's capital.
The company has decided to slash its capital base by 60 per cent to enable the company which has now come out of the BIFR ambit to pay dividend within the current financial year.
The extraordinary general meeting also passed a resolution to float a wholly owned international subsidiary in the name of RPG Music International Ltd. to fully exploit the potential of Indian music, which is quite popular abroad.
The overseas assets of GCIL will be transferred to this company.
GCIL, taken over by the R.P. Goenka group in the early 1980s and only recently deregistered from the BIFR's sick list, had an accumulated loss of Rs. 15 crore on March 1995.
Under the resolution passed today, each Rs. 10 equity share would be reduced to a Rs. 4 equity share and, thereby, the company's existing equity capital of Rs. 18.17 crore would be reduced to Rs. 7.27 crore.
The company would seek the permission of the Calcutta High Court to undertake the reduction in equity.
Minority shareholders, however, expressed their resentment at the proposed plan expressing dissatisfaction at being deprived of Rs. 6 in their existing share.
However, the capital reduced would increase the earnings per share (EPS) of the company by at least two-and-half times and hence total market capitalisation of the company would go up.
The holding of the RPG Enterprise in GCIL is around 50 per cent, while 25 per cent is held by the financial institutions.
Another 10 per cent is held by the EMI and 15 per cent by minority shareholders." (Emphasis added)
7. Complainant alleged that Chairman and Managing Director, Sri Gulshan Kumar of Complainant-Company was shocked to read the entire article pertaining to them as it has no truth. Complainant-Company has made audio cassettes of aforesaid film in compliance of provisions of Copyright Act, 1957 and paid prescribed royalty to accused company, i.e., GCIL. All the accused persons conspired together to discredit, humiliate, denigrate and defame complainant in the estimation of right thinking members of society (dissimulating) by publishing false, frivolous and defamatory article containing imputations against Sri Gulshan Kumar, Chairman and Managing Director of Complainant-Company. Imputations against them were made, edited, printed and published by accused persons in furtherance of their conspiracy with common intention to defame and denigrate the complainant as an industry, industrialist, social and religious person of high morale, standard and dignity in society at large. Complainant sent a legal notice dated 11.05.1996 which remained unreplied. Accused persons edited, printed, published and circulated the aforesaid article containing false, reckless and defamatory remark against complainant and its Chairman and Managing Director without any substance and there was no relevancy to make such defamatory remarks in extraordinary general meeting of GCIL. Accused persons have no reason or excuse and are not protected under any law to make such false, frivolous and reckless imputations against Chairman and its Managing Director. The acts and deeds of accused are not exempted under any of exceptions provided under Section 499 IPC or under any other Act. Accused persons are fully aware that imputations made by them against complainant has no truth. They were also aware that defamatory remarks will injure reputation of complainant. The sole objective of accused persons was only to harm reputation of complainant. Accused persons have no privilege under any law to publish libel/ defamatory articles against complainant. Complainant and its Chairman/ Managing Director have suffered ill reputation among fellow traders, industrialists, industries, dealers, family member, employees, directors, officers, associates and members of society who have started looking down on complainant and as such it has also suffered reputation/ image amongst industries, traders, dealers, stockists, business circle etc., who has started asking questions and complainant is facing an uphill task in satisfying everyone. Several persons have sent, to complainant, in writing, that after going through the above said news item they have lost faith in honesty of complainant and its Chairman/ Managing Director. GCIL and other members of society have also read the entire defamatory publication. Complainant's friends and others have made enquiries from complainant on telephone at Plot No. 1, Film Center, Sector 16A, Noida, District Ghaziabad, where complainant has its Corporate Office. Complainant has also read defamatory language published in said newspaper at Film Center, Noida. Newspaper was being circulated and sold in the area of Noida and Ghaziabad through various vendors. The act done by accused persons constitute an offence publishable under Sections 500, 501, 502 read with Sections 34/120B IPC.
8. After registering aforesaid complaint, Magistrate recorded statement of Sri S. Kanan, Senior Executive, Super Cassettes Industries Ltd. on 01.06.1996 under Section 200 Cr.P.C. Statements of Sri Aditya Kumar Jain, Advocate and Sri Gulshan Kumar son of Sri Chandra Bhan were recorded under Section 202 Cr.P.C. Thereafter Magistrate passed order on 14.06.1996 mentioning that on the basis of evidence and material on record there are sufficient ground to proceed against Accused-1 to 17 in complaint for an offence punishable under Section 500 IPC and consequently it summoned accused persons to appear for trial. On 11.09.1996 when accused persons were not present, Magistrate issued bailable warrant to all accused persons and it is at this stage this application has been filed.
9. Application No. 1910 of 1997 has been filed by sole applicant-Sanjeev Goenka in his capacity as Vice Chairman of GCIL against aforesaid Criminal Case No. 2234 of 1996 arising from Complaint No. 447 of 1996 wherein summoning order was issued on 11.09.1996 and, therefore, facts being common, are not repeated.
10. Sri G.S. Chaturvedi, learned Senior Counsel appearing for applicants contended that alleged statement attributed to Sri Sanjeev Goenka, Vice Chairman, GCIL, does not constitute a defamatory statement and, therefore, Section 500 IPC is not attracted at all and Magistrate has not applied its mind on this aspect. He further contended, when statement alleged to have been made only by Sri Sanjeev Goenka, accusation by impleading Applicants-1 and 3 to 12, in Application No. 960 of 1997, is wholly illegal and Magistrate without application of mind on this aspect, in a mechanical manner, has issued summons to all the accused and for this reason alone, summoning order and entire proceedings are vitiated against the applicants. He next contended that there was no legal evidence available before Magistrate justifying inference, even prima facie, to be drawn that applicants are guilty of committing offence under Section 500 IPC, therefore, also entire proceedings are illegal and liable to be set aside. He said that entire complaint and evidence is founded on news item published in newspaper and no person before whom alleged statement said to have been made was examined. Statement of Sri S. Kanan, Senior Executive of Respondent-2 recorded under Section 200 Cr.P.C. and two alleged persons whose statements are recorded under Section 202 Cr.P.C. are all strangers and third parties who have no knowledge about the matter except what they derived from reading of newspaper. Therefore, alleged witnesses are nothing but strangers and hearsay. A newspaper by itself is not admissible in evidence unless the person reported the matter is also examined and, therefore, entire proceedings initiated, only on the basis of newspaper article is clearly founded on no legal evidence at all, therefore, proceedings initiated against applicants are nothing but gross abuse of process of law, hence, entire proceedings are liable to be set aside. He lastly contended that Magistrate has not examined the matter that there was an apparent business rivalry among complainant-Respondent-2 and GCIL of which applicants were Chairman/Vice-Chairman/ Directors, sitting or former, and a suit was already pending in Delhi High Court wherein CGIL has made complaint that Respondent-2 has committed breach of copyrights. To pressurize and blackmail accused applicants and as a counterblast, above complaint was made and unfortunately, Magistrate without application of mind has proceeded to summon accused applicants, therefore, there is a serious legal error on the part of Magistrate and entire proceedings amounts to harassment of accused applicants by initiating wholly unlawful, not maintainable and illegal proceedings.
11. Sri Arvind Verma, learned Senior Advocate adopting arguments of Sri Chaturvedi in connected application also reiterated the said arguments and both learned Senior Advocates placed reliance on Supreme Court's judgement in R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and a Single Judge judgement of Bombay High Court in Ramachandra Venkataramanan Vs. Shapoorji Pallonji & Company Ltd. 2019 SCC OnLine Bom 524.
12. Learned counsel appearing for Respondent-2, on the contrary, submitted that a perusal of complaint as also the statements recorded by Magistrate under Sections 200 and 202 Cr.P.C. categorically show commission of an offence punishable under Section 500 IPC and, therefore, Magistrate has rightly summoned accused-applicants and they are liable to be tried for the said offence, hence, no interference is called for and would be justified by this Court. He submitted that at the stage of summoning accused persons in a complaint case, Magistrate's scope of enquiry is confined to the complaint and evidence adduced before it and it cannot examine the merit and demerits of case in detail. Magistrate has done what was required by it and it cannot be said that from the material placed on record, prima facie offence punishable under Section 500 IPC is not made out, therefore, both the applications deserve to be dismissed and no interference would be justified.
13. I have heard learned counsel for parties at length and perused record as also authorities and relevant law on the subject.
14. At the stage of summoning accused persons, a Magistrate is not supposed to pass a detailed judgement. The requirement, however, is that order must reflect application of mind. Magistrate must be satisfied that there is material to issue process. If complaint on the face of it does not disclose commission of an offence or if there is no legal evidence in support of complaint to prove the charge, then Magistrate will refrain itself from taking cognizance under Section 190(1)(a) Cr.P.C. In Mehmood Ul Rehman Vs. Khazir Mohammad Tunda (2015) 12 SCC 420, Court said that satisfaction for proceeding would mean that the facts alleged in the complaint would constitute an offence and when considered along with the statements recorded, would, prima facie, make the accused answerable before Court. If no application of mind is evident or no offence is made out, Court said that High Court under Section 482 Cr.P.C. is bound to invoke its inherent power in order to prevent abuse of power of Court.
15. Section 499 IPC provides as to what is "defamation" and reads as under:-
"499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person."
16. There are four Explanations and ten Exceptions in Section 499 IPC which I had not quoted.
17. Explanations covers some shades of the words, spoken or intended to be read etc., which may amount to "defamation" while exceptions give the illustrations of what will not constitute "defamation". To be more particular, Explanations-1, 2 and 3 provide certain aspects which would amount to defamation and Explanation-4 explains the words "will harm the reputation of such person" which is a necessary and integral part of Section 499 IPC so as to constitute defamation. Offence of defamation, therefore, consists of three essential ingredients. (i) making or publishing an imputation concerning a person; (ii) such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations; and, (iii) the said imputation must have been made with the intention of harming or with the knowledge or having reason to believe that it will harm the reputation of the person concerned.
18. Thus, to bring an offence under Section 500 IPC, prosecution has to show, (a) that an imputation was made consisting of words spoken or written or intended to be read or made by signs or by visible representations; (b) that the imputation concerned the complainant i.e. the person defamed and the person who has come forward qua complainant alleging that defamation concerned him, are identical persons; (c) that the accused made or published the incriminating imputation; and, (d) that the intention behind making and publishing words causing harm to the reputation of such person.
19. Offence punishable under Section 500 IPC, therefore, is to protect a fundamental right of a person i.e. 'reputation' which is part of right to enjoyment of life and liberty and property having an ancient origin as explained by Supreme Court in Smt. Kiran Bedi v. Committee of Inquiry and another 1989 (1) SCC 494 wherein Court reproduced the observations from D.F. Marion v. Davis 10 55 ALR 171 as under:-
"The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. " (emphasis added)
20. In Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni and Others (1983) 1 SCC 124, Court said that "right to reputation" is a facet of right to life of a citizen under Article 21 of Constitution.
21. In Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal 2012 (6) SCALE 190, Court dealt with the aspect of "reputation" though in a different context, and said:-
"........reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity. " (emphasis added)
22. In Kishore Samrite Vs. State of U.P. and Others 2013 (2) SCC 398, Court said:-
"The term 'person' includes not only the physical body and members but also every bodily sense and personal attribute among which is the reputation a man has acquired. Reputation can also be defined to be good name, the credit, honour or character which is derived from a favourable public opinion or esteem, and character by report. The right to enjoyment of a good reputation is a valuable privilege of ancient origin and necessary to human society. 'Reputation' is an element of personal security and is protected by Constitution equally with the right to enjoyment of life, liberty and property. Although 'character' and 'reputation' are often used synonymously, but these terms are distinguishable. 'Character' is what a man is and 'reputation' is what he is supposed to be in what people say he is. 'Character' depends on attributes possessed and 'reputation' on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present. "
(emphasis added)
23. Offence under Section 500 IPC, therefore, covers a very important aspect involving a person's right to life and liberty, hence when a complaint is made that a person's reputation has been jeopardized, any Magistrate if has taken cognizance in the matter by initiating proceedings, Court under Section 482 Cr.P.C. or in writ jurisdiction under Article 226 of Constitution should not interfere lightly unless a clear case of abuse of process of law is made out. I, therefore, would examine the matter in question, whether here a case of abuse of process has been made out or not.
24. Before coming to other aspects of the matter, first of all, straightway I propose to consider whether news item, said to have been published in daily newspaper "The Economic Times", taking on the face of it to be correct, satisfy the requirement of Section 499 IPC so as to constitute an offence of defamation punishable under Section 500 IPC.
25. The published news items has various parts. The first part, talks of alleged statement made by Sri Sanjeev Goenka; second part, talks of a case pending between two companies in Delhi High Court; and, third part, deals with the meeting of GCIL Board and passing of resolution for restructuring the Company's capital and gives some details of restructuring of Company and shareholding thereof.
26. For the purpose of present case, though second part i.e. pendency of case between two companies i.e. GCIL and T-Series in Delhi High Court, as per applicants, is the genesis for entire dispute but as per complaint made by Respondent-2, it is the first part of news item which has caused in commission of offence punishable under Section 500 IPC. The first part of news item again talks of two things. One is, what has been said by Mr. Goenka and another, inferential news which reflects the conclusion drawn by Reporter. Two statements are said to have been made by Sri Goenka in the aforesaid news item; (a) "Mr. Goenka said, some 65000 cassettes of popular Hindi film "Hum Aapke Hain Kaun" were ceased from the premises of T-Series in January", and (b) "Mr. Goenka said, T-Series is hampering the Gramaphone Company in fighting the counterfeit problem".
27. The remaining two sub-parts of first part of above news item show the inference drawn by Newspaper Reporter and these sub-parts are; (i) Mr. Sanjeev Goenka, Vice-Chairman, the Gramaphone Company of India Limited (GCIL), today accused T-Series of faking HMV audio cassettes and (ii) T-Series, which has emerged as possibly the fastest growing music company, is owned by Mr. Gulshan Kumar.
28. Obviously, the inference drawn by Newspaper Reporter cannot be attributed to be the statement of Sri Goenka unless such statement is brought on record to show that statement causing inference drawn by Newspaper Reporter was also stated by Sri Goenka and the said inference is not an extra stretching of a fact which as such has not been uttered by the person to whom it is attributed.
29. The first part of statement of Mr. Goenka, published in news items, relates to a fact and another is the opinion formed by Mr. Goenka on a particular aspect.
30. Now, when I go through the complaint, I do not find even a whisper stating that statement of Mr. Goenka that "65000 cassettes of Hindi film "Hum Aapke Hain Kaun" were ceased from the premise of T-Series in January", is a false statement and no such seizure had taken place. In the complaint, newspaper article has been reproduced in para-10 and thereafter from paras-11 to 17 it is said that aforesaid news item constitute an offence of defamation punishable under Section 500 IPC but I do not find even a whisper in the entire complaint that this statement of fact alleged by stated by Mr. Goenka that a particular number of cassettes were seized from the premise of T-Series, is false and incorrect. When aforesaid statement was not shown incorrect in entire complaint, I do not find that utterance of such statement of fact do constitute an offence of "defamation" as defined in Section 499 IPC and punishable under Section 500 IPC. Ex-facie an offence of defamation required firstly, a false statement and if a statement itself is not false, one need not go further as to whether such statement has the effect of damaging one's goodwill or reputation or image, inasmuch as, if a statement of fact which is not false is uttered then Section 499 IPC is not attracted at all.
31. Further the alleged statement of Mr. Goenka, when talks of seizure of cassettes from the premise of T-Series, nowhere stated that said cassettes were fake. This part of statement in news item is an inference drawn by Newspaper Reporter and on what basis he drew this inference, atleast from the two statements of Mr. Goenka, which are reproduced in aforesaid news item, it is difficult to find any reason for forming such opinion. Reporter may have extended the word "seizure" in the manner that seizure must be of fake cassettes.
32. The second part of alleged statement of Mr. Goenka shows that T-Series is obstructing GCIL fighting against counterfeit problem but it does not show or statement suggests that T-Series itself is indulged in counterfeit cassettes and is encouraging the same. Further, Mr. Goenka has not named Respondent-2 at all i.e. Super Cassettes Industries Limited or its Chairman and Managing Director, Sri Gulshan Kumar. That is a fact stated in the News item by Newspaper Reporter and he has said on his own that T-Series Company is owned by Sri Gulshan Kumar. I do not find that from reading of newspaper item that any common man would immediately relate it to M/s Super Cassettes Industries Limited as Respondent-2 has not been named by Mr. Goenka.
33. Rest averments contained in paras- 11 to 15 of complaint are the manner of reaction of Mr. Gulshan Kumar after reading said news item and his friends, members of society etc. known to him which would be irrelevant if the news item itself fails to bring applicants within the catch of Sections 499/500 IPC.
34. In a matter, complaining of offence of defamation, the alleged statement has to be appreciated in a manner which will be read, understood and viewed by right thinking and reasonable minded person of ordinary prudence. The statement has to be read and understood in its entirety and not selectively, in piecemeal, or by adding something which is not there. Natural and ordinary meaning of words would be supplied and what meaning and message it would convey to a man of ordinary prudence is a crucial aspect. Imputation of fraud, dishonesty and corruption in any manner directly attributing to complainant, no doubt, would amount to defamation but every statement which is not liked by complainant himself cannot be said to be a defamatory statement.
35. I have no manner of doubt that while considering the questions, whether an offence under Section 499 IPC punishable under Section 500 IPC has been committed, and whether Magistrate is justified in issuing process, the exceptions laid down in Section 499 IPC would not be considered since the same are defence available to accused and not to be looked into at the stage of issue of process by Magistrate but he (Magistrate) yet has to examine whether alleged statement, if read, as it is, do satisfy the requirement of "defamation" as defined in Section 499 IPC. It cannot be ignored that different persons react to the same situation differently, had different assessments and judgment of a situation and facts are based on human nature, mindset, approach, intelligentsia and ability of appreciation. Reaction of a reasonable person or right thinking member of society to the words spoken is a relevant consideration to find, whether statement in question amounts to defamation. Section 499 IPC clearly provides that statement of imputation must be with the intent of causing harm or having reason to belief that such imputation will harm reputation of the person about whom it is made. Meaning thereby, the identity of person in respect of whom the statement is made must be clear from the statement itself and not from the inference drawn by the person who claims that in his presence or before him an statement was made.
36. Further, if an inference is drawn by the person claiming that before him the statement was made then first of all it is the person who has drawn inference has to verify that a statement justifying such inference was made and unless such fact is not brought before Court concerned, any other statement of a person would amount to a hearsay and cannot be said to have proved that an offence under Section 499 IPC punishable under Section 500 IPC has been committed. Thus prima facie I am of the view that alleged statements of Mr. Goenka which are reported in aforesaid news item do constitute an offence of defamation under Section 499 IPC and punishable under Section 500 IPC is made out.
37. Then the next aspect on which non-application of mind by Magistrate is clear, is that, the news item very clearly and categorically refers to Mr. Goenka who made alleged statement constituting defamation but in the complaint several persons, i.e., Applicants-1 and 3 to 12 in Application No. 960 of 1997 have been implicated. Alleged statement nowhere shows that they either authorised Mr. Suneel Goenka to make such statement or that he was talking on behalf and under authority of all these persons to make such statement. News item itself refers to the statement of Mr. Sanjeev Goenka only and not anyone else. Therefore, implication of persons other than Sri Goenka in the complaint by complainant-Respondent-2 is ex facie illegal and amounts to gross abuse of process of law. Magistrate having failed to apply its mind on this aspect has committed gross illegality and summoning orders issued to other persons, i.e., Applicants-1 and 3 to 12 in Application No. 960 of 1997 is clearly illegal and cannot be sustained.
38. The next submission is that witnesses examined by Court below were all strangers and their statements are nothing but hearsay, inadmissible in evidence at all, and there was no legal evidence whatsoever since reporter of newspaper before whom the statement allegedly made, was not examined and newspaper by itself is not admissible in evidence, therefore, entire proceedings are illegal and bad in view of law laid down in R.P. Kapur (supra) which says that if a process has been initiated on the basis of material which do not constitute "legal evidence", then such a process would amount to abuse of process of law and must be quashed.
39. Learned counsel appearing for complainant could not dispute that three persons examined by Court below, i.e., Sri S. Kanan, under Section 200 Cr.P.C. and Sri Aditya Kumar Jain, Advocate and Sri Gulshan Kumar, under Section 202 Cr.P.C. were not the persons before whom alleged statements were made by Sri Sanjeev Goenka. They have founded the entire case on the basis of newspaper article which they have read, quoted in complaint and placed in evidence.
40. Newspaper reporting, whether correct or not, has not been fortified. A newspaper reporting by itself is a hearsay secondary evidence and not admissible unless the Reporter is examined or any person before whom the incident has occurred, is examined and prove the facts as such.
41. Question as to whether newspaper report is admissible in evidence and if so in what circumstances, has been considered time and again. In Samant N. Balkrishna and another vs. George Fernandez and others, 1969(3) SCC 238 this aspect has been considered by Supreme Court. Therein the dispute had arisen from an election petition wherein Sri George Fernandez was declared elected from Bombay South Parliamentary Constituency of Lok Sabha in the elections held in February, 1967 which was challenged by Samant N. Balkrishna, an elector in the Constituency on various grounds including allegations of corrupt practice. Election petition was dismissed by High Court and that is how the matter reached Supreme Court. Therein certain allegations of false publication of a news item in 'Maratha' was pleaded in election petition so as to constitute corrupt practice on the part of returned candidate through its agent but a direct allegation of corrupt practice against returned candidate was sought to be added which was not approved by Supreme Court. In para 47 of the judgment, in the context of news item published in newspaper 'Maratha', Court observed as under:
"A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a secondhand secondary evidence. It is well-known that reporters collect information and pass if on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."
(emphasis added)
42. Court also observed that trial of an election petition is made in accordance with Code of Civil Procedure but a corrupt practice must be proved in the same way as a criminal charge is proved. An election petitioner must exclude every hypothesis except that of guilt on the part of returned candidate or his election agent. When a corrupt practice is alleged against a returned candidate through his agent, consent of returned candidate has to be proved or election petitioner must go further and prove that the result of election in so far as returned candidate is concerned, was materially affected. In para 48 of judgment, Court said that a newspaper reporting a meeting, does so as part of its own activity, and there can be no inference of consent. What was necessary, had to be pleaded and proved, that Mr. Fernandez said this and this. Newspaper reports could be taken in support but not independently. Here the plea was not taken at all and evidence was not direct but indirect.
43. In Laxmi Raj Shetty and another v. State of Tamil Nadu, 1988(3) SCC 319 Court had an occasion to consider the matter arisen from a trial for conviction under Section 302 IPC wherein punishment of life imprisonment was awarded to convict. In an incident of robbery and murder of Manager of a Bank appellant, Laxmi Raj Shetty was convicted under Section 302 IPC with death sentence by Trial Court and under Sections 392 and 449 IPC imprisonment for seven years each. High Court confirmed death sentence and other sentence under Section 302, 392, 449 IPC and matter went in appeal to Supreme Court. There was no direct evidence in the matter and conviction and sentence founded on circumstantial evidence. Reliance on newspaper reports was placed by convict which was objected by State contending that unauthenticated news items in press cannot be treated to be a credible evidence for either convicting or acquitting a person in a Court of Law. Accepting argument of State, Court said that in cases where evidence is purely of circumstantial nature, facts and circumstances from which conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and circumstances so established should not only be consistent with the guilt of accused but they must in their effect be such as to be entirely incompatible with innocence of accused and must exclude a reasonable hypothesis with his innocence. Rejecting argument advanced on behalf of convict relying on newspaper reports, in para 25 of judgment, Court said:
"We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspapers is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspapers report cannot be treated as proved of the facts reported therein."
(emphasis added)
44. Further in para 26 of judgment, Court said:
"26. It is now well-settled that a statement of fact contained in a newspapers is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from appellant No. 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balakrishna v. George Fernandez & Ors [1969] 3 SCR 603. There the question arose whether Shri George Fernandez, the successful candidate returned to Parliament from the Bombay South Parliamentary Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said:
"A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."
We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of appellant No. 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged."
(emphasis added)
45. Next in the line is Quamarul Islam v. S.K. Kanta and others, 1994 Supp.(3) SCC 5 . It is again a dispute arising from an election petition under R.P. Act, 1951. Election of Quamarul Islam from 10 Gulbarga Assembly Constituency held in September, 1992 was challenged on the ground of corrupt practices. Reliance was placed on speeches allegedly made by returned candidate published in certain news papers. In para 48 of judgment Court said:
"48. Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and publisher, PW 4 by itself cannot amount to proving the contents of the newspaper reports. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned trial judge could not treat the newspaper reports as duly 'proved' only by the production of the copies of the newspaper. The election petitioner also examined Abrar Razi, PW 5, who was the polling agent of the election petitioner and resident of the locality in support of the correctness of the reports including advertisements and messages as published in the said newspaper. We have carefully perused his testimony and find that his evidence also falls short of proving the contents of the reports of the alleged speeches or the messages and the advertisements, which appeared in different issues of the newspaper. Since, the maker of the report which formed basis of the publications, did not appear in the Court to depose about the facts as perceived by him, the facts contained in the published reports were clearly inadmissible. No evidence was led by the election petitioner to prove the contents of the messages and the advertisements as the original manuscript of the advertisements or the messages was not produced at the trial. No witness came forward to prove the receipt of the manuscript of any of the advertisements or the messages or the publication of the came in accordance with the manuscript. There is no satisfactory and reliable evidence on the record to even establish that the same were actually issued by IUML or MYL, ignoring for the time being, whether or not the appellant had any connection with IUML or MYL or that the same were published by him or with his consent by any other person or published by his election agent or by any other person with the consent of his election agent. The evidence of the election petitioner himself or of PW 4 and PW 5 to prove the contents of the messages and advertisements in the newspaper in our opinion was wrongly admitted and relied upon as evidence of the contents of the statement contained therein."
(emphasis added)
46. The above authorities clearly show that a newspaper report by itself does not constitute an evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved either by production of Reporter who heard the statement and sent the same for reporting or by production of report sent by such Reporter and production of Newspaper's Editor or Publisher to prove such report. As held by Supreme Court in the above authorities a newspaper is at the best secondary evidence and not admissible in evidence without proper proof of contents under Indian Evidence Act, 1872. Trial Court cannot treat newspaper report as duly proved only by production of copies of newspaper. Thus the newspaper report was not a "legal evidence" which could have been examined to support the complaint.
47. In R.P. Kapur (supra) Supreme Court has held that inherent jurisdiction can be exercised to quash proceedings in a proper case either to prevent abuse of process in Court or otherwise to secure ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried in accordance with procedure prescribed in Cr.P.C. and this Court should be reluctant to interfere with the said proceedings at an interlocutory stage but an order of summoning is not an interlocutory order since it compels the accused persons to come to the Court and face trial and his valuable rights of freedom to some extent are affected, hence in such cases if it can be shown that there is a legal bar against institution or continuation of proceedings, Court would interfere. For example, absence of requisite sanction could be one of such matters where Court would be justified for quashing the proceedings exercising power under Section 482 Cr.P.C. Next category is where allegations contained in FIR or complaint, if taken at their face value, and accepted in entirety to be correct, still do not constitute the offence alleged. While forming its opinion Court will not examine or appreciate any evidence and it will only look to the complaint or FIR to decide whether offence alleged is disclosed or not. If no offence is made out, Court would be justified to interfere. Then the third category is where allegations made against accused persons may constitute offence alleged but there is either no "legal evidence" adduced in support of case or evidence adduced, clearly and manifestly, fails to prove the charge. In such case also interference under Section 482 Cr.P.C. would be justified. I may quote the relevant extract from the judgment in R.P. Kapur (supra) on this aspect as under:
"A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question." (emphasis added)
48. In the present case, evidence under Sections 200 and 202 Cr.P.C. recorded by Court below does not prove the allegation that statements alleged to have been made by accused-applicants were made and newspaper report itself with regard to its contents was inadmissible hence there is no legal evidence.
49. Hence, here is a case where accused persons have been summoned without any "legal evidence" available before Trial Court to support the charge it comes within the category of gross abuse of process. This Court is aware that in considering whether evidence adduced is a "legal evidence" or not, it will not go to examine reliability of evidence but it is only admissibility of evidence and the factum, whether such evidence if admissible supports the charge or not which has to be seen by this Court and that is what I have considered in this matter and find that there was/ is no "legal evidence" whatsoever, hence proceedings initiated by Magistrate in the cases in hand are patently illegal and amounts to abuse of process of Court. Therefore, to secure ends of justice interference of this Court under Section 482 Cr.P.C. is justified and called for.
50. In view thereof, both the applications are allowed. Proceedings in Complaint No. 447 of 1996 filed by Respondent-2 in the Court of 9th Additional Chief Judicial Magistrate, Ghaziabad including Criminal Case No. 2234 of 1996 as also bailable warrant dated 11.09.1996, are hereby quashed.
Order Date :-22.10.2019 AK