Delhi District Court
Prof. Ram Prakash vs . D. N. Srivastava & Anr. on 1 June, 2012
IN THE COURT OF SHRI RAJINDER SINGH: METROPOLITAN
MAGISTRATE04 (SOUTH), SAKET COURTS:NEW DELHI
CC No. 58/1/10
Prof. Ram Prakash Vs. D. N. Srivastava & Anr.
U/s 500/34 IPC
P.S. Kotla Mubarakpur
J U D G M E N T
Serial No. of the Case : 58/1
Unique Identification No. : 02406R1054022008
Date of Institution : 27.11.2008
Date on which case reserved for
judgment : 19.05.2012
Date of judgment : 01.06.2012
Name of the complainant : Prof. Ram Prakash
s/o Late Sh. Brij Mohan Lal
r/o 212, Sukhdev Vihar
New Delhi110025
Date of the commission of offence: From 3rd to 9th December, 2007
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Name of accused : (i) D. N. Shrivastava
Assistant Editor 'Jan Vikas'
Jan Vikas House, 1808,
Kotla Mubarakpur, Prasadi Gali,
New Delhi110003
R/o B48 (Barsati Floor)
South Extension Part1,
New Delhi110049
(ii) Shri Shivanand Chandola
Editor, Jan Vikas,
Jan Vikas House, 1808,
Kotla Mubarakpur, Prasadi Gali,
New Delhi110003
R/o B48, Sector49,
Noida, UP130121.
Offence complained of : U/s 500/501 IPC
Offence charged of : U/s 500/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Both the accused acquitted
Date of Institution : 27.11.2008
Date on which case reserved for
judgment : 19.05.2012
Date of judgment : 01.06.2012
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BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
In the 3rd to 9th December, 2007 issue of Jan Vikas Weekly Newspaper an article was published titled "Adalat Ke Aadesh Par Bhi Nagar Nigam Maun" (despite Court orders no action by municipality). The accused D. N. Shrivastava is the CoEditor and the accused Shiva Nand Chandola is the Editor of Jan Vikas Weekly Newspaper. It is alleged by the complainant that the article contained libelous imputations against him, which harmed and damaged his reputation. The accused persons deliberately and intending to harm the reputation of the complainant published this article.
The accused persons D. N. Shrivastava and Shiva Nand Chandola admitted that they were working for the newspaper Jan Vikas Weekly in the capacity of CoEditor and Editor respectively. They also admitted that they published the said article.
2. The complaint U/s 500 & 501 IPC was filed on 27.11.2008. The matter was fixed for presummoning evidence. The complainant examined himself as CW1.
Arguments on summoning were heard. Vide order dated 19.03.2009 the Ld. Predecessor summoned both the accused persons for the offences CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.3 of 18punishable U/s 500/501 IPC.
On 19.05.2010 Ld. Counsel for accused D. N. Shrivastava appeared. The accused Shiva Nand was absent despite service. Bailable warrant was issued against accused Shiva Nand. Accused Shiva Nand was admitted to bail on 04.06.2010. Accused D. N. Shrivastava was admitted to bail on 21.08.2010.
Copies of the complaint and documents were supplied to the accused persons.
3. Notice for the offence U/s 500/34 IPC against both the accused persons was framed on 20.11.2010. Both the accused pleaded not guilty and claimed trial. COMPLAINANT EVIDENCE :
4. The complainant to prove its case examined himself as CW1.
CW1 Sh. Ram Prakash (the complainant) stated, I am a retired Professor from Indian Institute of Public Administration. The accused D. N. Shrivastava wrote the article Ex.PW1/1 titled as despite Court orders, no action by municipality. It contained false and defamatory remarks against me. The article was published in the Jan Vikas issue of 03rd to 09th December, 2007. During my cross examination in a civil matter titled as Ram Prakash Vs. R. K. Chaudhary before the Court of Sh. Rakesh Kumar, Ld. ADJ, Tis Hazari, I was confronted with this article (the Certified copy of my crossexamination is Ex.PW1/3). I have suffered financial CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.4 of 18loss because of this article. The accused Shrivastava was my tenant. A lease deed between me and the accused Shrivastava is Ex.PW1/2 (certified copy seen and returned). The accused Shrivastava vacated my premises in April 2010 when his appeal was dismissed by the Hon'ble Supreme Court. He still owes Rs.24550/ to me for a decree passed against him in Tis Hazari Courts. Execution of the same is pending. The accused was vindictive against me. This article was published to harm and damage my reputation. The article could not have been published without the consent and knowledge of the editor of the newspaper. I was required to visit the Corporation office due to the false complaint. I have also been harassed by the BSES because of the libelous article.
During crossexamination by Ld. Counsel for accused persons, CW1 stated, I have not raised any unauthorized construction on my plot B48, South Extension Part1. The said property was never booked for demolition of unauthorized construction. No local commissioner was appointed by the Hon'ble High Court and visited my premises at B48, South Extension Part1. The electricity department never imposed any misuse charge against me. The basement and ground floor of the said property were let out to 'Bengali Sweets Center' for residential purpose only. In reply to the Court question, CW1 stated that the employees i.e. guards, cooks, messenger/peon and watchman of the tenant Bengali Sweets center were residing in my premises. The first floor of my premises was used as a paying guest accommodation exclusively for working girls. I received a notice CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.5 of 18from the corporation about the misuse of my premises by my tenant. I cannot say whether MarkX is the said notice or not. I deny the document MarkY. It is wrong to suggest that article was published with bona fide intentions.
Vide order dated 29.01.2011, post summoning evidence was closed. STATEMENT OF ACCUSED :
5. On 11.02.2011 separate statement of both accused U/s 281 Cr. PC was recorded. Both the accused persons denied all the allegations against them. They wanted to lead defence evidence.
DEFENCE EVIDENCE :
6. Accused persons examined 5 (five) DWs.
DW1 Sh. Maheshwar Sharma stated, I am residing at 1882A, Kotla Mubarakpur, New Delhi. The property No.B48 is situated near my house. The said property was being used for commercial purpose/activities by Bengali Sweets House. The said premises was being used by the employees of Bengali Sweets House for preparing food. I have noted the said activities because I am using the road for coming and going. Sometimes there were 1520 employees and there used to be CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.6 of 18traffic jam because of this activities.
During crossexamination by the complainant, DW1 stated, I have not seen any lease deed with Bengali Sweets center. Vol. I have seen the employees of Bengali Sweets in their uniform. I have not seen them preparing sweets. I did not go inside the ground floor of the premises B48, South Extension. I have no idea about the dispute between the accused No.1 and his landlord.
DW2 Sh. Shamsher Singh (Senior Town Planner (L) Town Planning Department, MCD, Civic Centre, New Delhi) brought the original letter No.TP/G/3783/08 dated 26.09.2008 (OSR), photocopy of the same is Ex.DW1/A. DW2 stated that the said letter was written in response to an RTI query by Sh. D. N. Shrivastava. The queries were general regarding the Master Plan Provisions for hostel and paying guest. It is stated in the letter that hostel is not automatically permitted on a residential plot.
During crossexamination by the complainant, DW2 stated, I cannot say anything, what is going in premises B48, South Extension Part1.
DW3 Sh. Charan Singh (UDC, Property Tax Department, MCD) brought the certified copy of reply dated 17.03.2010, to the application under RTI Act, ID No.720/Jt.A&C/CNZ dated 24.02.2010. The certified copy of the reply running in 2 pages is Ex.DW3/A. During crossexamination by the complainant, DW3 stated, property tax department has nothing to do with the sealing and demolition of the property CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.7 of 18including the property of the complainant.
DW4 Ravi Kant Gupta (Asstt. Engineer, Building Department, MCD, Central Zone, New Delhi) stated, I am posted as Asstt. Engineer in Building Department, MCD, Central Zone, Lajpat Nagar, New Delhi. Today I have brought attested true copy of the reply dated 03.04.2008 to the RTI application ID No.56 dated 27.02.2008. The same is Ex.DW4/A. I have also brought the reply dated 03.04.2008 to the RTI application ID No.57 dated 27.02.2008. The same is Ex.DW4/B. I have also brought the reply dated 03.09.2008 to the RTI application ID No.406 dated 05.08.2008. The same is Ex.DW4/C. I have also brought the reply dated 26.10.2009 to the RTI application ID No4284 dated 06.10.2009. The same is Ex.DW4/D. I have also brought the reply dated 04.09.2008 to the RTI application ID No.400 dated 05.08.2008. The same is Ex.DW4/E. I have also brought the reply dated 22.12.2008 to the RTI application ID No.406 & 400 dated 05.08.2008. The same is Ex.DW4/F. During crossexamination by the complainant, DW4 stated, I have no personal knowledge about the facts of this case.
DW5 Sh. Rakesh Kumar (UDC, Building Department, Central Zone, MCD) brought the general dispatch register for the period 21.01.2002 to 23.03.2004. Vide entry No.83 dated 08.04.2002, notice regarding survey of property No.B48, NDSE Part1 was sent to Sh. Ram Prakash, Sh. D. N. Shrivastava and Sh. Rajan Chaudhary. Photocopy of the entry is Ex.DW5/A. Copy of the notice is not traceable in the record.
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During crossexamination by the complainant, DW5 stated, I am not aware about the proceedings that followed the notice.
Vide joint statement dated 01.10.2011, DE was closed. ARGUMENTS :
7. Arguments were advanced by complainant and Ld. Counsel for accused persons.
It was argued by the complainant that the accused D. N. Shrivastava was his tenant. The accused D. N. Shrivastava was involved in unauthorized use of the portion under his tenancy. After his eviction I got the said portion demolished. The accused D. N. Shrivastava is having malice against me. Article Ex.PW1/1 was published without proper verification. The article Ex.PW1/1 is libelous in nature. It implies that I use wrong practices and indulged in wrong practices. The accused was under a duty to verify the truth before publishing the said article. Both the accused persons, in furtherance of their common intention, intentionally defamed me.
Written submission filed by the complainant perused. It was argued by Ld. Counsel for accused persons that the article Ex.PW1/1 was published in 'good faith' and for 'public good'. The said article was meant to highlight MCD inaction. The article did not target any specific individual, besides the present complainant the article also carried reference to other properties. CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
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It was argued that the facts published in the article were true. The survey of the property B48, NDSE Part1 was carried out by the Local Commissioner, during survey it was observed that a portion of the building was being used commercially and the complainant was required to attend the office of Assistant Engineer (Building) Central Zone on 18.04.2002. All these facts are clearly mentioned in the letter dated 08.04.2002. Copy of the same are MarkX. The property No.B48, South Extension Part1 was booked on 12.06.2002, U/s 344(1) & 343 of the DMC Act, for unauthorized construction. All these facts are clearly mentioned in the reply given by the MCD, attested true copy of the same is Ex.DW4/B. In reply to the RTI application of the accused, the MCD issued information dated 03.09.2008, attested true copy of the same is Ex.PW4/C, therein it is specifically mentioned that police help for demolition was refused only on two occasion i.e. On 15.01.2003 and 28.01.2003. The reply Ex.DW4/F clearly specifies that between 12.06.2002 to 05.08.2002, 72 letters were written to the police station Kotla Mubarakpur, seeking police aid for taking action for demolition. It was argued that out of the 72 occasions the police aid was refused only on two occasions. On the remaining occasion despite the availability of the police aid, no demolition was carried out, at the unauthorized construction of the complainant. It shows that the complainant was exercising influence and involved in manipulation to prevent the demolition of his unauthorized construction.
It was argued that the property of the complainant at B48, South CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.10 of 18Extension Part1 was being used for commercial purpose. In response to the RTI application of the accused, reply Ex.DW3/A was given by the MCD, therein at point
(b) it is mentioned that as per the report dated 16.05.2001 of the area inspector, the basement and ground floor of the property was occupied by CMCI, for office use. One room on the first floor was rented to Subham International. It was argued that the property of the complainant was being used for commercial purpose. DW5 stated that the notice sent to the complainant and the accused D. N. Shrivastava is not traceable on record. However the same was dispatched on 08.04.2002 vide entry No.
83. It was argued that copy of the said notice is MarkX. Since the original is not traceable on record, the photocopy may be read in evidence. It was argued that the article was written and published with the intention to expose the corrupt practices of the MCD.
REASONING :
8. The accused persons admitted that they have published the article Ex.PW1/1. The accused persons claimed the benefit of first and ninth exception to Section 499 IPC. The accused persons relied upon the judgment of Hon'ble Supreme Court titled as Harbhajan Singh Vs. State of Punjab, 1966 AIR 97 (1965) SCR (3) 235, therein it was held, where the accused claims benefit of exception as defence, the accused is not required to prove his defence beyond reasonable doubt. The defence of CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.11 of 18the availability of exception(s) U/s 499 IPC is sufficiently proved with the preponderance of probabilities.
The complainant also relied upon the aforementioned judgment of the Hon'ble Supreme Court. The complainant argued that 'public good' and 'good faith' must coexist for the accused to claim the benefit of exceptions U/s 499 IPC. The burden of proving that the accused is entitled to the exception lies upon the accused only.
9. The complainant argued that the article published by the accused persons is defamatory, it has the tendency to lower the esteem of the complainant.
I have perused the article Ex.PW1/1. In the complaint at para No.5, the complainant has given a running English translation of the relevant portion of the article. In the article it is stated that the complainant has some nexus with the MCD official due to which he is able to avoid the demolition action of the MCD.
No doubt that such imputation would definitely harm the reputation of any person, in the estimation of the right thinking members of the society.
10. Now the Court shall proceed to examine whether the actions of the accused persons falls within the first and ninth, or any other exception as provided in Section 499 of the IPC.
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The first exception as provided in Section 499 IPC reads as follows :
First Exception--Imputation of truth which public good requires to be made or published.It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
The first exception is available to an accused where the imputations made by him are true and they are made for 'public good'.
It was argued on behalf of accused persons that as mentioned in the article Ex.PW1/1, the property No.B48, South Extension Part1 belonging to the complainant was, in fact, booked for unauthorized construction on 12.06.2002. The same is evident in view of contents of Ex.DW4/B and the contents of Ex.DW4/E. I have perused the contents of Ex.DW4/B, therein it is mentioned that property No.B48 was booked on 12.06.2002 on account of unauthorized construction. I have also perused the contents of Ex.DW4/E, therein also it is mentioned that the property B48, South Extension Part1 was booked for unauthorized construction. However, the same was not being used for commercial purpose.
DW4 was crossexamined by the complainant. The complainant did not dispute the genuineness of document Ex.DW4/B & Ex.DW4/E. But still during his crossexamination, the complainant denied that he raised unauthorized construction on his plot at B48, South Extension Part1. CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.P.S. Kotla Mubarakpur Page No.13 of 18
In view of the above, it is proved by preponderance of probabilities that the property of the complainant was booked for unauthorized construction.
11. In the article Ex.PW1/1, it was mentioned that despite court order MCD was not taking any action for demolition of unauthorized construction. It was argued by Ld. Counsel for accused persons that it is specifically mentioned in Ex.DW4/F that between 12.06.2002 to 05.08.2008, on 72 occasions letters were written to police officials seeking police aid for demolition in the local area of P.S. Kotla Mubarakpur (it is pertinent to mention that the property of the complainant falls within the local jurisdiction of P.S. Kotla Mubarakpur). In Ex.DW4/C it is specifically mentioned that police aid for demolition action was refused only on two occasions i.e. on 15.01.2003 & 28.01.2003.
It was argued by the Ld. Counsel for accused persons that on the remaining 70 occasions, police aid was available. Despite the availability of the police aid, the MCD did not carry out any demolition activities and the property of the complainant was always spared. The reason for this is best known to the MCD official or the complainant himself.
In Ex.DW4/C it is further mentioned that demolition action was taken against unauthorized construction in the properties in South Extension Part1.
In view of the above, it appears from the record that despite several occasions, the MCD did not take any steps to demolish the unauthorized construction CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.14 of 18for which the property of the complainant was booked.
12. It was argued on behalf of accused persons that the property of the complainant was rented out for commercial purpose to Bengali Sweets. DW1 Sh. Maheshwar Sharma stated that he saw workers of Bengali Sweets house at the property of the complainant. There were about 1520 employees of Bengali Sweets house. The gas cylinders were brought by the employees of Bengali Sweets house, to the property of the complainant. During crossexamination, DW1 stated that he saw the employees of the Bengali Sweets house in uniform at the property of the complainant.
During crossexamination, complainant CW1 admitted that he rented out the basement and ground floor of his property to Bengali Sweets center for residential purpose for their employees.
In reply to a court question, CW1 stated that some of the employees of Bengali Sweets who were residing at his property were guards, cooks, messengers, peons, chowkidars etc. The locality of South Extension Part1 is a posh locality. The properties in that locality carry a very high rental value. It is really improbable and absurd to believe that a business concern (Bengali Sweets) would hire the property of the complainant and pay a high rent for their lower grade employees like guards, cooks, peons and chowkidars.
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In Ex.DW3/A it is specifically mentioned that as per the report dated 16.05.2001 of the Area Inspector of MCD Assessment and Collection Department, the basement and ground floor in the property of the complainant were occupied by CMCI for office use. DW3 was offered for crossexamination by the complainant, the complainant did not assail the veracity of Ex.DW3/A. It goes to prove that the complainant did let out his property for commercial purpose.
13. In view of the above it is clear that accused persons, by preponderance of probabilities have sufficiently proved that they are entitled to the benefit of first exception to Section 499 IPC.
14. The ninth exception to Section 499 IPC reads as follows :
Ninth ExceptionImputation made in good faith by person for protection of his or other's interests.It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
It was argued on behalf of accused persons that the article Ex.PW1/1 was not specifically targeting the complainant. In the said article, the emphasis was to high light the inaction of the MCD. In the said article, there is mention about other properties situated in different localities across Delhi.
I have read the article Ex.PW1/1. In the initial part of the article there CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.P.S. Kotla Mubarakpur Page No.16 of 18
is no mention about the complainant. The article emphasis upon the inaction of the MCD. Thereafter as the article proceeds the name of the complainant and his property appears in the article, followed by an account about the unauthorized construction being raised in the other properties of various localities in Delhi.
On a wholesome reading of article, it appears that the article does not specifically target any individual, although it refers the complainant by name.
15. In the first exception to Section 499 IPC, it is mentioned that whether or not the imputation is for public good is a question of fact.
There is no standard definition of 'public good'. The expression 'public good' is not capable of being defined in certain terms. It can only be described and not defined. However, there may be certain situations where a particular action clearly falls in the description of 'public good'. Exposing corruption of the government department is certainly for public good. It is the duty of every responsible citizen to expose corruption. There may be certain cases where an individual or any other body of individual or a corporate body exposes corruption for seeking revenge or for ulterior motives. In such cases the ulterior motives have to be proved by the complainant.
In the present case, the complainant alleged that the accused No.1 was his tenant and he was vindictive towards the complainant. However, there is no material on record to show or prove that the article Ex.PW1/1 was written by the CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr.
P.S. Kotla Mubarakpur Page No.17 of 18accused persons, out of malice.
16. In view of the above, the accused persons have proved their defence by way of preponderance of probabilities. Accordingly, both the accused persons are acquitted of the offence punishable U/s 500/34 IPC.
17. File be consigned to Record Room after due compliance.
Pronounced in open court (RAJINDER SINGH) on 01.06.2012 MM04(South):Saket Courts:New Delhi 01.06.2012 CC No. 58/1/10 Prof. Ram Prakash Vs. D. N. Srivastava &Anr. P.S. Kotla Mubarakpur Page No.18 of 18