Gujarat High Court
Tv18 Broadcas Ltd. Through Apurv Narula vs State Of Gujarat on 5 January, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/12239/2021 ORDER DATED: 05/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12239 of 2021
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TV18 BROADCAS LTD. THROUGH APURV NARULA
Versus
STATE OF GUJARAT
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Appearance:
MR DEVEN PARIKH, SENIOR ADVOCATE WITH MR VIRAT G
POPAT(3710) for the Applicant(s) No. 1,2,3
MR N D NANAVATI, SENIOR ADVOCATE WITH MR CHETAN K
PANDYA(1973) for the Respondent(s) No. 2
MR L B DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 05/01/2022
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') for quashing and setting aside the Criminal Case No.3236 of 2021 pending in the Court of Judicial Magistrate First Class, Kalol along with process issued by the concerned Magistrate, Kalol vide order dated 20.09.2021.
2. Heard learned Senior Advocate Mr. Deven Parikh assisted by learned advocate Mr. Virat Popat for the petitioners, learned APP Mr. L. B. Dabhi for the respondent - State and learned Senior Advocate Mr. Nirupam Nanavati assisted by learned advocate Mr. Chetan Pandya for respondent No.2 - original complainant.
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3. Learned counsel appearing for the petitioners submitted that the present respondent No.2 has filed a complaint being Criminal Case No.3236 of 2021 before the Court of Judicial Magistrate First Class, Kalol against the present petitioners under Section 500 read with Section 34 of the Indian Penal Code. It is submitted that the concerned Magistrate Court, after taking verification of the complainant and after examining the witness of the complainant, issued process vide order dated 20.09.2021 and therefore the petitioners have filed the present petition.
4. Learned counsel has referred to the relevant averments made in the impugned complaint and thereafter referred the transcript, copy of which is placed on record at page 99A of the compilation. It is submitted that as per the case of the complainant, because of the broadcasting of the news report against the complainant - company in the News Channel viz. "CNBC TV 18" (hereinafter referred to as the 'News Channel') on 11.06.2021, the complainant - company has been defamed. It is alleged that accused persons have broadcasted grossly malicious, defamatory and false news report against the complainant company on 11.06.2021. It is alleged that the News Channel has portrayed proximity and nexus in terms of public shareholding between the Foreign Portfolio Investors and Adani Group with the increase in share price of such companies. The said defamatory Page 2 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 news report contained baseless, outrageous and disparaging statements against the complainant company and Adani Group, which have seriously jeopardized the goodwill and market reputation of the complainant company and Adani Group.
5. Learned counsel for the petitioners, at this stage, would contend that the said allegations made in the complaint are baseless and after referring to the transcript, it is contended that it was merely an analysis and discussions made in the News Channel with regard to the FIIs. It is also contended that the accused have given their honest opinion on the basis of the material available with them. However, there is no defamation within the meaning of Section 499 of the Indian Penal Code as alleged by the complainant.
6. Learned counsel Mr. Parikh for the petitioners would further contend that there must be imputation with an intention to harm the reputation of the concerned person and while making imputation there must be mens rea. Further, imputations must be false. However, in the present case, no imputation is made against the complainant - company which affects the reputation of the complainant - company and as such there is no mens rea on the part of the present petitioners - accused. It is also contended that no material is produced along with the complaint pointing out that the analysis made by the accused was false. At this stage, learned counsel has Page 3 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 referred the provisions contained in Section 499 of IPC and also referred Explanation 4 thereof.
7. Learned counsel Mr. Parikh would further submit that the concerned Magistrate Court at Kalol has no jurisdiction to try the criminal case filed by the present respondent - original complainant company. After referring to the verification of the complainant as well as statement of witness Abhishek, learned counsel has submitted that the story put forward by the complainant is not believable and with mala fide intention, the complaint is filed at Magistrate Court situated at Kalol. At this stage, it is also pointed out that the complainant company has also filed Special Civil Suit No.213 of 2021 against the present petitioners for defamation, declaration, permanent and mandatory injunction in the Court of Principal Senior Civil Judge at Ahmedabad Rural. Thus, when the Magistrate Court situated at Kalol is having no jurisdiction, the said Court has wrongly taken cognizance by passing the impugned order. Thus, on the ground of jurisdiction also the complaint and the impugned order be quashed and set aside.
8. Learned Senior Advocate Mr. Parikh has, thereafter, referred to the averments made in para 10 of the petition and contended that the concerned Magistrate Court is proceeding with the matter in haste and therefore also the proceedings before the Magistrate Court at Kalol be stayed. It is also submitted that while passing the impugned order of Page 4 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 issuance of process, certain observations are made by the learned Magistrate from which it can be said that the learned Magistrate has already given the finding that the present petitioners accused have committed the alleged offence.
9. Learned counsel Mr. Parikh, at this stage, has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Subramanian Swamy v. Union of India, reported in (2016) 7 SCC 221, and more particularly, relied on para 195 and 196 of the said decision. Learned counsel, therefore, urged that the complaint and impugned order be quashed and set aside.
10. On the other hand, learned Senior Advocate Mr. Nirupam Nanavati appearing for the respondent No.2 - complainant has referred to the averments made in the affidavit-in-reply filed by the respondent No.2. Thereafter, learned counsel has referred to the allegations levelled against the present petitioners
-accused in the impugned complaint. Learned counsel has also referred the transcript, copy of which is placed on record at page 99A of the compilation. After referring to the same, it is contended that prima facie, the ingredients of the alleged offence punishable under Section 499 IPC are made out in the complaint. It is also contended that defence of the present petitioners accused cannot be taken into consideration at this stage and from reading the transcript it is revealed that the petitioners Page 5 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 accused have intentionally made certain imputations against the complainant company in the guise of analysis. Learned counsel has also referred the first paragraph of the said transcript and also referred the relevant portion of the same. Thereafter, learned counsel has also referred the last paragraph of the said transcript and contended that the broadcasting of the said discussion on News Channel, prima facie, made out a case for defamation of the complainant company.
11. Learned counsel Mr. Nanavati has placed reliance upon the decision rendered by this Court in the case of Rohini Singh D/o. Late M. B. Singh and 6 v. State of Gujarat, reported in 2018(1) Crimes (HC) 522. Learned counsel has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Sewakram Sobhani v. K. K. Karanjia, Chief Editor, Weekly Blitz and others, reported in (1981) 3 SCC 208.
12. Learned counsel Mr. Nanavati further submits that looking to the averments made in the compliant, the Magistrate Court, Kalol has rightly taken cognizance by issuing process against the present petitioners accused. At this stage, it is further submitted that even assuming that the Magistrate Court at Kalol has no jurisdiction to try the case, even then on that ground the complaint cannot be quashed. In support of the said contention, learned counsel has placed reliance upon the provisions Page 6 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 contained in Sections 191 and 460 of the Code.
13. Learned Senior Advocate lastly contended that when the ingredients of the alleged offence are prima facie made out in the impugned complaint, this Court may not exercise powers under Section 482 of the Code in favour of the present petitioners. Learned counsel, therefore, urged that this petition be dismissed.
14. Learned APP has submitted that in the facts and circumstances of the present case, this Court may pass an appropriate order.
15. Having heard the learned counsel appearing for the parties and having gone through the material placed on record, it would emerge that the respondent No.2 - complainant has filed complaint under Section 500 read with Section 34 of the Indian Penal Code against the present petitioners before the Court of Judicial Magistrate First Class, Kalol. If the impugned complaint is carefully seen, it can be said that specific allegations are levelled against the petitioners accused for commission of the alleged offence punishable under Section 500 IPC. It is specifically alleged that defamatory news report was deliberately broadcasted in order to project impression of Adani Group maliciously in utmost libelous and atrocious manner and mode. It is also alleged that accused persons have willfully, with criminal intention and in connivance with each other, Page 7 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 under the guise of analyzing the public shareholding of Adani Group of Companies, have tried to link the Foreign Portfolio Investors (FPI) with their holding in the complainant company by falsely portraying their involvement in the increase in share price of these companies. Thus, from the averments and allegations made in the impugned complaint, prima facie, it can be said that ingredients of the alleged offences are prima facie made out. This Court has also considered the transcript, copy of which is placed on record at page 99A of the compilation. If the first paragraph of the said transcript is read along with other discussion and the last paragraph of the said transcript, prima facie, it can be said that allegations are made against the complainant company. It is specifically stated in the last paragraph that, "CNBC TV 18 has written to the regulators, SEBI and MCA to ask whether this is an issue that they are studying, they think this is an issue that needs a little more investigation. But its up to the regulators of course."
16. This Court has also gone through the verification of the complainant and the statement of the witness which has been recorded during the course of inquiry by the concerned Magistrate. This Court has also gone through the reasoning recorded by the concerned Magistrate Court while passing the impugned order of issuance of process against the present petitioners accused and this Court is of the view that no error is committed by the concerned Page 8 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 Magistrate Court while passing the impugned order.
17. It is well settled that the defence of the accused can be examined at the time of trial and complaint/FIR cannot be quashed on the basis of the defence taken by the concerned accused while exercising powers under Section 482 of the Code. Thus, when, prima facie, the ingredients of the alleged offence punishable under Section 500 IPC are made out, this Court is not inclined to consider the request of the petitioners to quash and set aside the impugned complaint.
18. Learned Senior Advocate appearing for the petitioners has contended that the Magistrate Court at Kalol has no jurisdiction to try the complaint in question. However, it is also well settled that on the ground of jurisdiction the complaint cannot be quashed and set aside. If the impugned complaint is carefully seen, the complainant has made specific averments that he along with Mr. Kartik Ashwinkumar Jasani viewed the defamatory news through this News Channel format online while his visit at City Mall-1, near ICICI Bank, Kalol City. Further, in para 28 of the compliant, the complainant has specifically stated about the territorial jurisdiction of Kalol Court to try the complaint. Even otherwise, as per the provisions of Section 460 of the Code, proceedings shall not be vitiated in the event the concerned Magistrate is not empowered by law to do any of the things stated in the said provision.
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19. At this stage, it is pertinent to note that in the present petition, the petitioners have prayed that the impugned complaint and the order passed by the concerned magistrate, whereby, the process is issued, be quashed and set aside. The petitioners have not prayed that since the Magistrate Court at Kalol has no jurisdiction, the complaint impugned be transferred to the competent Court. Even such request is also not made before the concerned magistrate Court. At this stage, the relevant observations made by the Hon'ble Supreme Court in the case of Subramanian Swamy (supra) are required to be kept in view. The Hon'ble Supreme Court observed in para 195 as under:
"195. In the course of hearing, it has been argued that the multiple complaints are filed at multiple places and there is abuse of the process of the court. In the absence of any specific provisions to determine the place of proceedings in a case of defamation, it shall be governed by the provisions of Chapter XIII of the CrPC - Jurisdiction of the Criminal Courts in Inquiries and Trials. A case is ordinarily tried where the Offence is committed (Section 177). The expression used in Section 177 is "shall ordinarily be inquired and tried" by a court within whose jurisdiction it was committed. Whereas "shall"
brings a mandatory requirement, the word "ordinarily" brings a situational variation which results in an interpretation that the case may be tried as per the further provisions of the Chapter. In case the place of committing the offence is uncertain, the case may also be tried where the offence was partly committed or continues to be committed (Section 178). The case may also be Page 10 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 tried where the consequence of the act ensues (Section 179). The other provisions in the chapter also deal with regard to certain specific circumstances. Section 186 CrPC gives the High Court powers to determine the issue if two or more courts take cognizance of the same offence. If cases are filed in two or more courts in different jurisdictions, then the Jurisdiction to determine the case lies with the High Court under whose jurisdiction the first complaint was filed. Upon the decision of the High Court regarding the place of trial, the proceedings in all other places shall be discontinued. Thus, it is again left to the facts and circumstances of each case to determine the right forum for the trial of case of defamation. Thus, CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law. But that cannot be a reason for declaring the provision unconstitutional."
19.1. In the case of Sewakram Sobhani (supra), the Hon'ble Supreme Court has observed in para 11 as under:
"11. The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege, and have greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of a citizen. We hasten to add that journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under First Exception unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any other relevant fact in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or, in the limited cases Page 11 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022 R/SCR.A/12239/2021 ORDER DATED: 05/01/2022 specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in good faith: per Vivian Bose, J. in Dr. N.B. Khare v. M.R. Masani and Ors."
20. Keeping in view the aforesaid decisions, if the facts of the present case as discussed hereinabove are examined, this Court is of the view that when the ingredients of the alleged offence are prima facie made out in the impugned complaint, the defences taken by the petitioners cannot be considered at this stage while exercising powers under Section 482 of the Code. Accordingly, I am not inclined to entertain present petition. Hence, petition stands dismissed. However, it is clarified that the observations made by the concerned Magistrate Court while passing the order of issuance of process shall not come in the way of the petitioners at the time of trial and the Trial Court shall examine the matter independently without being influenced by the observations made in the impugned order dated 20.09.2021.
(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI Page 12 of 12 Downloaded on : Wed Jan 12 17:17:11 IST 2022