Delhi District Court
Brig. (Retd.) Madan Lal vs . Prabhat Ranjan Deen & Others on 11 July, 2023
IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District : PHC : New Delhi.
Complaint Case No.44278/2016
Brig. (Retd.) Madan Lal Vs. Prabhat Ranjan Deen & Others
P.S. Connaught Place
ID number of the case : New No.44278/2016
DLND020006702011
Date of commission of offence : 15.03.2002.
Date of institution of the case : 06.05.2002.
Name of the complainant : Bregadir (Retired) Madan Lal Nasa,
67, Bhagat Singh Market, New Delhi
110001.
Name of accused and address : (1) Shri Prabhat Ranjan Deen,
Reporter Jansatta Express, Lucknow,
UttarPradesh.
(2) Dr. Akhilesh Das, Chairman &
Publisher Jansatta Express, Lucknow,
UttarPradesh.
(3) Shri Ghanshyam Pankaj,
Chief Editor, Jansatta Express,
Lucknow, UttarPradesh.
(4) Shri R.K. Agarwal, Viraj Press,
1/5, Vishal Khand, Gomti Nagar,
Lucknow, UttarPradesh.
Offence Charged : Under Section : 500, 501 & 502 of
the Indian Penal Code, 1860.
Offence Complained of : Under Section : 500, 501 & 502 of
Or Proved the Indian Penal Code, 1860.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Date of judgment : 11.07.2023.
Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 1
JUDGMENT
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. By this Judgment, I shall disposeof the present complaint filed by the complainant under Section 500, 501 & 502 of the Indian Penal Code, 1860.
2. Briefly stated, the complainant is a retired officer from Indian Army. Post retirement, he was engaged in multiple roles by government and nongovernment agencies. The details of his engagements are not being reproduced for brevity and want of relevance.
3. The complainant was filed with the primary allegation that on 15.03.2022, accused persons namely, Prabhat Ranjan Deen (Author), Dr. Akhilesh Das (Publisher, Jansatta Express), Ghanshyam Pankaj (Chief Editor) and R.K. Aggarwal (Printer) published a story/article in Hindi daily newspaper 'Jansatta Express' published from Lucknow, UttarPradesh with date line 'Lucknow, 14 March, concerning "tragic deaths of some youths at Army Recruitment Center at Lucknow in 'Septic Tank Accident". The allegation goes that to sensationalize the story, accused No. 1 knowingly made malicious and baseless allegations against the complainant in order to defame him and his family, smearing his good name by not only connecting his name with so called corruption in M.E.S but also dubbing him as Anti National by falsely and Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 2 maliciously asserting that complainant was caught red handed for the charge of supplying Arms to Kashmiri Militants.
4. The alleged story further read that while serving as Chief Engineer, M.E.S., the complainant was arrested at Jammu Airport with Rs.28 Lacs cash on the charge of supplying arms to Kashmiri Militants and was still undergoing imprisonment. Referring to the title of the story "Atankiyon Ko Hathiyar Supply Karnay Walay Bregadier Kay Betay Par Tha Rkahrakhao Ka Zimma", it is alleged that the title itself is per se defamatory.
5. As per the complaint, the said story came to the knowledge of Shri Sunil Mangla, S/o Late O.P. Mangla, R/o 87, MIG Flats, Prasad Nagar, New Delhi and Shri Surender Maggu, S/o Late G.C. Maggu, R/o JGII, 620, Vikas Puri, New Delhi in the evening of 15.03.2002 when they visited Indian Coffee House at Mohan Singh Palace, Connaught Place, New Delhi, where the publication in question was being read by some visitors who were discussing the article at the adjoining table. Upon hearing that conversation about complainant, Shri Sunil Mangla and Shri Gyanchand Maggu borrowed a copy of the said newspaper from the concerned person and provided the same to the complainant.
6. As a result of the allegations levelled in the story, friends, relatives, neighbours and other acquaintances including the personnel from the Armed Services who had served with complainant, started Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 3 avoiding him and his family, and some of them even severed their relations with them. It is stated that the complainant and his family members have been socially ostracized because of the impugned publication. Further, it is stated that the defamatory article has not only lowered down the reputation of the complainant in the estimation of others, but has also caused mental agony to him and his family members.
7. For clarity of thought and readability of this judgment, it may again be noted that the malicious and defamatory publication was authored by accused No. 1, approved, published and circulated by accused No. 2, selected and edited by accused No. 3 and printed by accused No. 4 without verifying the truth of the allegations. That is the sum and substance of the allegation.
8. Upon the conclusion of presummoning evidence, all the accused persons were summoned vide order dated 08.01.2007. At this stage, it is relevant to note that the summoning order was challenged before the Hon'ble High Court of Delhi in Crl. M.C. 3394/2007 and 113/2008 on the ground that cognizance was taken by the Court after the lapse of limitation. The summoning order was upheld vide order dated 01.07.2010.
9. The complainant examined himself as CW1 at the stage of presummoning evidence. In his evidence, CW1 deposed that he had retired from Indian Army as Brigadier and after serving full time of his Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 4 services with merits, he was beneficiary of full pension in accordance with the Army Rules after retirement. He further deposed that in the year 2002, he was appointed Arbitrator by Registrar CoOperative Societies, Delhi Government in government cases of CoOperative Banks and Co Operative Group Housing Societies and was also Administrator of a Group Housing Society. Further, he was working as Consultant for sale of cement to Government Agencies through Director General, Supplies and Disposals for Gujrat Sidhi and Saurashtra Cement Limited. CW1 further deposed that his elder son was a Major in 2002 (Now Lt. Colonel) and his wife was a Dental Surgeon.
10. CW1 further deposed that on 15.03.2002, a Hindi daily newspaper 'Jansatta Express' was published from Lucknow with date line Lucknow 14.03.2002, which was authored by accused No.1, Prabhat Ranjan Deen, concerning tragic death of some youth at Army Recruitment Ralley at Lucknow in Septic Tank accident. He further deposed that in the same news article, he was stated to be involved in corruption and was dubbed as antinational by falsely stating that he was caught red handed for the charges of supplying arms to Kashmiri Militants. In the same article, it was also falsely stated that while complainant was serving as Chief Engineer, MES, he was arrested at Jammu Airport with cash of Rs.28 Lacs on the charges of supplying arms to Kashmiri Militants and was still undergoing imprisonment on the date of publication. CW1 also deposed that the caption of the article 'Atankiyon Ko Hatiyar Supply Karnay Walay Brig. Kay Betay Per Tha Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 5 Rkahrakhao Ka Zimma' is also per se defamatory. The newspaper dated 15.03.2002, containing the above article is Ex. CW1/A and the article is encircled in portion A to B.
11. CW1 further deposed that the said story was read by one Sunil Mangla and Shri Surinder Maggu in the evening of 15.03.2002 when they went to Indian Coffee House, Mohan Singh Palace for having coffee, where some visitors were reading the publication in question and were discussing the contents of the article at the adjoining table. Upon hearing name of the complainant, Shri Sunil Mangla and Shri Surinder Maggu asked the visitors to spare a copy of the newspaper which was given by them. Later on, the complainant was informed about the contents of article by both of them as they were shocked to learn about it. CW1 further deposed that publication of the article has defamed him and completely shattered him and his family members since all the allegations are false, baseless and malicious. He further deposed that the publication has caused tremendous loss of reputation to him and his family, and tarnished the image of his whole family in the society. CW1 further deposed that after coming to know about the article, he sought legal advise and issued legal notice Ex. CW1/B, to the accused persons on 01.04.2002, thereby asking them to publish an apology in bold letters at a prominent place on the front page of newspaper, with a view to provide an opportunity to them to undo the wrong done by them by publishing a false and defamatory article. The testimony of CW1 in pre summoning evidence is on the same lines as the averments in the Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 6 complaint. Thus, entire testimony is not being reproduced to avoid repetition.
12. After appearance of the accused persons, the matter was straightaway fixed for Complainant's Evidence. The presummoning evidence was allowed to be adopted by the complainant at the post summoning stage vide order dated 02.05.2011, and the matter was put for crossexamination of the complainant. The complainant was elaborately crossexamined on multiple dates. It is relevant to note that, after cross examination, two issues emerged. Firstly, the presummoning evidence was adopted as it is and no fresh examination took place after summoning of the accused. Secondly, no notice under Section 251 Cr.P.C. was framed upon the accused persons after appearance and the matter was directly fixed for complainant's evidence. The objection regarding notice was noted by this Court and vide order dated 06.09.2014, notice was served upon the accused persons. The accused persons took exception to this course of proceeding and filed a petition before the Hon'ble High Court Crl. M.C. 1507/2015 and 1527/2015 seeking directions to not read the evidence adopted by CW1 as examination in chief as it was recorded in the absence of the accused. Vide order dated 13.06.2016, the petitions came to be dismissed by the Hon'ble High Court and the evidence was found to be validly recorded as adoption was done in the presence of the accused. Further, framing of notice was also upheld.
Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 7
13. During crossexamination, CW1 deposed that he had served in defence services for 30 years and he had been posted in Jammu & Kashmir. He further deposed that during his posting in Jammu and Kashmir in 1992, there was an inquiry regarding his sending of Rs.90,000/ from Srinagar by a soldier, who was proceeding on temporary duty to Delhi to deliver it to his brother, but he has nothing to do with that case and it has no relevance to the present case. CW1 further deposed that thereafter, he retired and the Court Martial cleared him from the charge of corruption and his 90,000/ were returned to him. He further deposed that his orderly was initially arrested, but later on left without any punishment because he had owned up recovery from him and he had no responsibility in that case. He further deposed that he came to know about the publication in the evening of 15 th March, 2002. During his crossexamination, CW1 was asked to disclose the name of the person who was originally carrying the copy of the newspaper in New Delhi and from whom he had brought copy of the publication in New Delhi on 15th March, 2002. CW1 replied that he came to know from Mr. Sunil Mangla, who got the copy from somebody in the Coffee House, New Delhi. He also deposed that he had rebutted the defamatory contents regarding his son in his complaint. However, after going through the complaint, he could not cite any rebuttal. CW1 affirmed that he did not mention in his complaint that he was never arrested red handed for supplying arms to Kashmiri Terrorists. He again deposed that he had mentioned that article was malicious, false and baseless. He further affirmed that he did not say specifically that he was never arrested red Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 8 handed for supplying arms and ammunition to Kashmiri Terrorists. He further deposed that he has not specifically mentioned in his complaint that the newspaper containing the alleged article was handed over to him by Shri Sunil Mangla and Shri Surender Maggu. He voluntarily deposed that Sunil Mangla had informed him telephonically about this article and later he brought the paper to him. He affirmed that this fact is not mentioned in his complaint. He further affirmed that he did not mention in his complaint that his son Major Mohit Nasa was never posted at Lucknow, West Madhya Command Headquarter as a Garrison Engineer West, as mentioned in the article that he was posted there. He further affirmed that he did not mention in his complaint that while he was posted as a Chief Engineer in MES, was never arrested at Jammu Airport for supplying the weapons to Kashmiri Terrorists along with Rs.28 Lacs in cash or that he was not in Jail but he had mentioned in general that all allegations were false and baseless. He further deposed that he did not tamper the record after filing the complaint. He further deposed that he did not remember whether he had placed any document, other than relying upon the complaint, after filing the complaint. He further deposed that he had seen the list of witnesses and list of documents which he had signed. He did not remember whether he ever moved any application for placing on record any additional document on record. He volunteered that he might have moved an application for change of his address only. CW1 affirmed that he had gone through and understood the complaint and its contents before signing the same. He further affirmed that he did not mention in his complaint that a legal notice was given to accused Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 9 persons. He further deposed that he did not remember whether he had mentioned in his complaint that legal notice is being annexed with the complaint. He even did not remember that on which date the document Ex. CW1/B was filed by him or whether any permission was taken or granted by the Court to take this document on record. CW1 further deposed that he was never tried by any Court of Inquiry in Jammu & Kashmir, however, he had filed a writ petition before the Hon'ble Jammu & Kashmir High Court.
14. During further crossexamination, CW1 deposed that he might have filed two or three writ petitions before the Hon'ble Jammu & Kashmir High Court. He again deposed that he did not remember exactly. CW1 affirmed that there were charges of corruption and he knew the charges against him. He further affirmed that in May, 1992, five charges were framed against him by Shri I.K. Verma, Major General, GOC, 19 Infantry Division, Commanding Officer. He further affirmed that there was a charge for accepting a cash of Rs.93,600/ towards the sale of 160 shares of Colgate and Palmolive and 200 shares of Rohit Pearl from Shri Majafar Ahmed Bhatt in contravention of para 346 of Regulation for the Army VolumeI, 1987. He further deposed that he could produce certified copies of the order in which he was acquitted on corruption charges. The crossexamination was deferred for certified copies of orders.
Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 10
15. CW1 further affirmed that he was tried by a Summary General Court Martial. He further deposed that he was found guilty in one of the charges, though he was found not guilty in other two charges. He again deposed that in fact, he was held guilty in two charges and was found not guilty in one charge. He further deposed that there is a difference between Court Martial and Court of Inquiry. He affirmed that Court of Inquiry means preliminary inquiry and if one would be found guilty, prima facie only then he would be referred to the General Court Martial. He further affirmed that there was Court of Inquiry against him in Jammu & Kashmir and when prima facie case was found against him, then the matter was referred for Court Martial. He volunteered that Court of Inquiry is not a trial. He further deposed that he was found guilty on the second charge under Section 63, Army Act (Alternative to the First Charge), an act prejudicial to good order and military discipline, in that between 20th February, 1992 and 3rd March, 1992, while he was serving as Chief Engineer, Srinagar Zone, he improperly persuaded Shri Pran Nath Gupta, a Military Engineering Service Contractor to arrange sale of his 200 equity shares of Rohit Pulp and Paper Mills Limited and 160 equity shares of Colgate Palmolive (India) Limited, which Pran Nath Gupta did by arranging their purchase for Rs.93,600/ by one Muzaffar Ahmed Bhat, a supplier of bricks to the said Contractor. Further, he was also found guilty on third charge under the Army Act, Section 63 (An Omission Prejudicial to Good Order and Military Discipline), in that between 27th May, 1991 and 16th December, 1991, he improperly omitted to report about the acquisition of shares/movable property in Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 11 contravention of SAO 16/S/85 as amended vide Army Headquarters Letter No. B/13906/Policy/Org.9 (a) dated 4 th November, 1988, which enjoins all ranks to report about acquisition of movable property including shares of the value of Rs.10,000/ or above, as soon as possible, but not later than six months of the transaction. The description of shares/movable property is (a) Rohit Pulp and Paper Mills Limited - 200 shares (1458855 to 1458904 and 1573987 to 1574136 of the value of Rs.34,500/, (b) Colgate Palmolive (India) Limited, Bombay - 160 shares (16020318 to 16020367, 06037432 to 06037481 and 044704867 to 044704826 of the value of Rs.54,400/). The order of the General Court Martial is Ex. CW1/DA (from pages 1 to 6).
16. CW1 affirmed that he had preferred an appeal against the conviction orders of Court Martial by way of a Writ Petition before the Hon'ble Jammu & Kashmir High Court. He did not remember what was the order of the Single Judge of the Hon'ble High Court in this petition. He again deposed that the Hon'ble Single Judge had stayed the orders of Court Martial. He further deposed that he could not produce certified copies of the stay orders of the Single Judge. He further deposed that he could produce the photocopy which had already been supplied by him to this Court. The witness was asked to show copy from the judicial file. He again deposed that he can produce it on the next date. He further deposed that all benefits of his service in Army had been given to him and nothing was withheld by the Army. He further deposed that the writ petition filed by him was still pending before the Hon'ble Jammu & Kashmir High Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 12 Court. CW1 affirmed that the writ petitions were filed against the orders of the Court Martial in which he was held guilty. CW1 did not have any knowledge of the status of his writ petitions nor he could tell the next date.
17. CW1 further deposed that he had rebutted the defamatory article against him in paragraph Nos. 4, 5 & 6 by giving notice to accused on his story. He further deposed that he did not rebut specifically in the legal notice that he was not caught red handed while supplying weapons to Kashmiri Terrorists but he had mentioned that the allegation was false. He further deposed that he specifically did not rebut in the legal notice that while he was posted as Chief Engineer in MES, he was arrested at Jammu Airport with Rs.28,00,000/ cash in order to supply weapons to Kashmiri Terrorists, however, he had mentioned that it was a false allegation.
18. CW1 affirmed that his son Mohit Nasa was posted at Central Command, HQ, Lucknow as a Garrison Engineer (West). He further deposed that he has not given any legal notice about the averments in the article against his son Major Mohit Nasa nor did he file any complaint to this affect. However, he did not know whether his son had filed any complaint or given any legal notice. He further deposed that he did not mention in his complaint that he was held guilty for two charges, out of three by Court Marshal proceedings held in Jammu & Kashmir. He further deposed that he was acquitted in corruption charges Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 13 and the same had no connection with the defamatory article published against him in the newspaper. He volunteered that he was held guilty only for administrative lapses. However, the said conviction was stayed by the Hon'ble High Court of Jammu & Kashmir. He further deposed that his son Major Mohit Nasa was never tried in any Court Marshal. He did not know the next date or before which bench his case was pending in which there was a stay by the Hon'ble High Court of Jammu & Kashmir. He could not give any next date nor produce any document to show whether his appeal was dismissed or whether his conviction was set aside, after his case was stayed. He denied the suggestion that he was convicted and his conviction was never set aside.
19. CW1 further deposed that only once Court Martial/Court Inquiry was conducted against him. He further deposed that no second inquiry was ever conducted by the General Officer, CommandingIn Chief, Northern Command, C/o 56 APO.
20. He further deposed that all inquiries pertained to only one Court Martial Inquiry and no second Court Martial proceeding, after a fresh preliminary hearing under Army Rule 22 read with Army Rule 25, was carried out by the above said officer. During crossexamination, CW1 was questioned that after the summary of evidence was completed, the Commanding Officer, General Officer, Commanding HQ 19 Inf. Div. C/o 56 APO perused the same and after applying his mind, remanded the case for trial by the Court Martial to a Superior Authority in accordance Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 14 with Army Rule 24, to which he answered that the abovesaid summary evidence pertains to only one Court Martial for which correspondence goes from Lower Headquarter to Higher Headquarter and clears whether action will be taken or not. He further deposed that this pertains to only one Court Martial. CW1 affirmed that his conviction was stayed till 26.05.1997.
21. CW1 affirmed that he had filed a Writ Petition vide O.W.P. No. 416/97 against his conviction and sentence by Summary General Court Marshal (SGCM) in which an order was passed on 30.04.1997 by staying his conviction and sentence till the next of hearing that was 26.05.1997. However, he could not produce any order after passing the interim order dated 30.04.1997, whether the order of interim stay was extended or not and whether his conviction and sentence were set aside or not. He affirmed that he did not make any statement in the Court against the accused after their summoning nor did he exhibit any document, however, he adopted his evidence recorded at the stage of pre summoning. He did not know whether he had exhibited his complaint and legal notice or any other document in the presence of accused after their summoning. He further deposed that only his lawyer could answer this. He again deposed that he felt the same was produced by his lawyer. He again deposed that the complaint, legal notice and other documents were exhibited in the presence of accused after their summoning. He further deposed that he had mentioned/referred about the Court Marshal, his conviction and sentence by the Court Marshal in the legal notice Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 15 given to the accused and had mentioned in the complaint or mentioned in the statement given before the Court on oath before summoning the accused. CW1 was confronted with notice Ex. CW1/B and statement made before summoning, which is Ex. CW1/DA. He volunteered that this case pertains to defamation and news report has nothing to do with his case of Court Marshal and conviction. He further deposed that the said news report pertained to supply of arms to Kashmiri Terrorists and it was reported that he was caught red handed while selling arms to Kashmiri Terrorists. The news report further said that he was caught with Rs.18 Lacs in Cash and also that he was undergoing imprisonment at the time of publication of news report, however, there was no such happening and he had retired 10 years before publication of report (This portion of the statement was made voluntarily by the witness, and was objected to by Ld. Counsel for accused persons).
22. CW1 denied the suggestion that he has filed a false and frivolous complaint by withholding about his conviction and sentence on the criminal charges framed by the Court Marshal in which he was tried. He further denied the suggestion that he has not deliberately produced the final judgment of the Hon'ble Jammu & Kashmir High Court against his conviction in which whatever given in the news was observed by the Court Marshal. He further denied the suggestion that he was never defamed by the alleged news report which was in fact published, printed and reported in the newspaper in a bona fide manner, as per their reliable Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 16 resources to enlighten the public. He further denied the suggestion that he has deposed falsely being interested witness.
23. CW1 Madan Lal was recalled for crossexamination in terms of order passed by Ld. Additional Sessions Judge. During his crossexamination, he deposed that he did not remember whether the two writ petitions preferred by him before the Hon'ble Jammu & Kashmir High Court vide case No. SWP 1659/92 and SWP 2190/92 were dismissed on 22.06.1998 with a common order. Even he did not know whether the petition No. 416/97 vide title Brigadier M.L. Nasa Vs. Union of India was dismissed or pending. He again deposed that he did not remember. He further could not remember whether appeals/writ petitions against the conviction were dismissed. He could not remember whether he had sent legal notice to the accused persons through Courier, Registered AD & UPC. He could not remember whether he had filed the proof of sending or service of the above said legal notice to the accused persons. CW1 even after perusing the file could not locate/show the same before the Court. He further deposed that he had gone through the newspaper to see the responsibility of the persons for the news in question. He affirmed that it was clearly mentioned in the newspaper dated 15.03.2002 at page No. 14 at point A to A1 vide Ex. CW1/DA. He volunteered that he has not read that portion at that time. He denied the suggestion that he has deliberately withheld his conviction from the Court or that his appeal/writ petitions were already dismissed by the Hon'ble Jammu & Kashmir High Court. He denied the suggestion that he Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 17 was deliberately not producing the judgment/order of his conviction which was upheld by the Hon'ble Jammu & Kashmir High Court. He denied the suggestion that he has deposed falsely, deliberately and withheld the proceedings conducted against him for corruption and other offences which were initiated by the Court of Court Marshal while he was in service. He further denied the suggestion that he has filed this frivolous and false complaint against the accused persons despite knowing that it was mentioned in the paper itself that except the editor, no person would be responsible for the news in question.
24. CW2 Sunil Mangla deposed that he has come to the Court after receiving summons from this court to appear today. He further deposed that he knew Madan Lal Nasa since several years and he was familiar to his family also and he has great respect in the society. He further deposed that on 15.03.2002 at about 67 p.m. he had gone to Indian Coffee House, Mohan Singh Palace, New Delhi along with his friend, namely, Surender Maggoo. He further deposed that while they were sitting in the Coffee House, a few persons, who were sitting at their adjoining table were discussing something little bit loudly. When they heard the conversation, they had mentioned the name of Brigadier Madan Lal Nasa, alleging him of being caught red handed for supplying weapons to terrorists, which was published in a newspaper on that day and were condemning him. Since, they knew Shri Madan Lal Nasa, they immediately approached those persons and came to know about the publication of article in the newspaper 'Jansatta', published from Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 18 Lucknow with the heading 'Aatankiyon Ko Hathiyar Supply Karne Wale Brig. Ke Bete Par Tha Rakhrakhav Ka Jimma'. Thereafter, they requested those persons to spare the newspaper as the story related to a known person and borrowed the newspaper from them. He further deposed that he has seen the newspaper in the judicial file which is Ex. CW1/A and the article encircled from portion A to B. He further deposed that thereafter, they contacted Brigadier Madan Lal Nasa and showed him the said article in the newspaper upon which he was shocked, surprised and stunned. When they asked him about the truthfulness of the article, he denied all the allegations levelled against him in the article. He further deposed that thereafter, on number of occasions when he visited Brigadir Madan Lal Nasa's house, he found Brigadier Madan Lal Nasa and his family members to be upset, frustrated and humiliated. He also found that Brigadier Madan Lal Nasa and his famiy members had started avoiding social contacts due to publication of the said article which was insulting.
25. In his crossexamination, CW2 Sunil Mangla deposed that the distance between his residence and the residence of complainant is about 45 k.m. He further deposed that complainant is not his relative. He further deposed that he did not know whether the accused is a convicted man.
26. Thereafter, CW was closed and the matter was fixed for recording of statement of accused under Section 313 Cr.P.C. which came Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 19 to be recorded on 03.03.2017. Proceedings against accused Akhilesh Das Gupta were abated after his expiry.
27. In the statement under Section 313 Cr.P.C., the accused stated that the responsibility of content was of the editor and not of the reporter or of the printer. It was further stated that the complainant never examined himself in the presence of the accused and the documents were also exhibited in their absence. Accused Prabhat Ranjan Deen and R.K. Aggarwal chose to lead defence evidence.
28. DW1 Colonel Mohit Nasa, Posted at Ministry of External Affairs, New Delhi deposed on oath that on he was a Major and was posted at Lucknow, Uttar Pradesh as Garrison Engineer in the month of March, 2002. He affirmed that Septic Tank collapsed accidently which was constructed in the year 1980. He further deposed that there was a recruitment rally which was organized by the Army, wherein without the knowledge of the Authorities, some area, which was not supposed to be accessible to the public, was cleared where the location of Septic Tank was there. He further deposed that during the rally, there was lot of commotion and stampede due to which the Septic Tank collapsed and some boys who had come for recruitment rally died. He further deposed that an inquiry was ordered and it was proved that there was nothing wrong with the Septic Tank but it was accidentally opened to pubic which was not supposed to take place at the site due to which the Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 20 accident taken place. He further deposed that this was reported in the national news by Hon'ble Defence Minister who called it a sad accident.
29. DW1 further deposed that after this incident a news article, which was totally false regarding his father Brigadier M.L. Nasa, was published maligning his father with false news about selling arms in Jammu in 'Jansatta' newspaper. He further deposed that this also affected his image while he was serving at Lucknow. He further deposed that his father was a retired Brigadier from the Army and after this news article, he faced lot of embarrassment.
30. DW1 Colonel Mohit Nasa was crossexamined by Ld. Counsel for Complainant. During his crossexamination by Ld. Counsel for Complainant, DW1 Colonel Mohit Nasa deposed that his name was mentioned in the Article dated 15.03.2002 in Hindi daily newspaper 'Jansatta' which is already Ex. CW1/A. He further deposed that it was mentioned in the Article Ex. CW1/A that 'Aatinkiyo Kau Hatiyar Supply Kaney Waley Brig. Ke Bete Par Tha Rakh Rakhav Ka Jimma'. He further deposed that the allegations levelled against him in the aforesaid article Ex. CW1/A were false. He further deposed that an official inquiry was conducted regarding the incident of Septic Tank at Lucknow Cantonment and after the conclusion of inquiry, he was not found guilty for the aforesaid incident. He further deposed that no body from the newspaper 'Jansatta' including the accused persons approached him to know his version of the whole incident before or even after Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 21 publishing the said story. He further deposed that he had filed a criminal case against the accused herein in Lucknow, however, he could not pursue the same after his transfer from Lucknow to Sagar, Madhya Pradesh.
31. During pendency of case, accused No. 3, Ghanshyam Pankaj expired and statement of complainant regarding his death verification newspaper was recorded in this regard on 19.04.2011. Subsequently, his name was dropped from the list of the accused persons.
32. After conclusion of defence evidence, the matter was fixed for final arguments. Elaborate final arguments were advanced on behalf of the parties.
33. Ld. Counsel for the complainant submitted that the accused persons did no due diligence before publishing the article, which shows that they had a malicious intent to harm the reputation of the complainant. He further argued that even if the complainant was convicted in a Court Martial, the same was done on charges of a minor nature and there was no basis for the statement relating the complainant with terrorists or to call him anti national. He further submitted that even as per the statement of complainant's son, none of the accused persons approached him to verify the contents of the article.
Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 22
34. Ld. Senior Counsel appearing on behalf of the accused persons submitted that the original complainant did not disclose complete facts and was filed in a dishonest manner in order to implicate the accused persons. He further submitted that the presummoning evidence was wrongly adopted at the postsummoning stage as it was never recorded in the presence of the accused, as mandated by Section273 Cr.P.C. He elaborately dealt with the crossexamination of the complainant, recorded on multiple dates, and submitted that the complainant has admitted that he was convicted on charges of corruption by the Court Martial. Further, he referred to the original complaint and submitted that the complainant has not rebutted the factual content of the article in question, even as an averment in the legal notice or complaint.
35. Referring to the decision of the Hon'ble Supreme Court in Aroon Purie v. State of NCT of Delhi 2022 SCC OnLine 1491, he submitted that the liability, it any, shall fall upon the editor as he was responsible for selection of content. He further referred to the disclaimer on page no. 14 of the alleged newspaper Ex. CW1/DA to buttress the submission that only editor could be held liable and not the reporter or printer. Moreover, as the submission goes, the printer could only have been held liable under Section501 IPC and no notice under the said provision was framed upon the accused.
36. In rebuttal, the aforesaid submission was rebutted by Ld. Counsel for the complainant who submitted that even if notice was not Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 23 per se framed under Section501 IPC, the accused could be held guilty for the offence under the said provision if the evidence on record leads to that conclusion. Framing or nonframing of notice shall be of no consequence at this stage.
37. I have given a careful consideration to the complaint, supporting documents, evidence on record and arguments advanced by both sides. I may now proceed to discuss the law on criminal defamation and appreciate the evidence on record, in order to arrive at a conclusion.
38. Section499 of IPC defines defamation as follows:
"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 excepted, to defame that person.
Explanation 1.--It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the fellings of his family or other near relatives.
Explanation 2.--It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.--An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.--No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loothsome state, or in a state generally considered as disgraceful."
(emphasis supplied) A person can be said to have committed the offence of defamation if -
Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 24 i. He makes or publishes any imputation concerning any person; ii. The imputation must be made by words (either spoken or intended to be read) or by signs or by visible representations; iii. The imputation must be made with an intention to harm the reputation of any person or with knowledge/reason to believe that the imputation shall harm the reputation of any person. iv. For the purpose of this case, ExplanationIV supplements and adds a condition to the definition of defamation. It provides that no imputation could be said to have harmed a person's reputation unless that imputation lowers the moral or intellectual character of that person in the estimation of others.
39. The definition of defamation is followed by ten exceptions which delineate certain situations wherein an imputation harming a person's reputation shall not be treated as criminal defamation. Siding with brevity, I may refer to only two exceptions which appear to be relevant to the enquiry before me -
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.
Ninth Exception.--Imputation 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.
Broadly, the aforesaid exceptions refer to two cases - i. Imputation of truth if revelation of such truth is meant for the public good;
Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 25 ii. Imputation made in good faith for the protection of any person or for the public good.
40. At this stage, it is relevant to mention that the primary burden to prove the case rests upon the shoulders of the complainant and the burden needs to be discharged beyond any reasonable doubt. Whereas, the burden prove any exception falls upon the accused, however, such burden has to be discharged on a preponderance of probabilities only. Furthermore, the law is fairly clear that applicability of a statutory exception is not conditional upon specific pleading by the accused. If the evidence on record creates a statutory exception in favour of the accused, even if not explicitly pleaded, the Court must grant the benefit of the same to the accused. For, law is not conditional upon pleadings and its protections cannot be suppressed on such grounds. The criminal jurisprudence is fairly clear that in order to prove the ingredients of a criminal offence, three elements are required to be established - actus reus, mens rea and link of causation between the accused and the act in question. In an offence of defamation, the actus reus is the act of making or publishing an imputation, mens rea is the intention to harm the reputation of any person and link of causation shall be established by showing a proximate link between the accused and the alleged act.
41. It is the case of the complainant that the accused Prabhat Ranjan Deen authored an article levelling malicious and false allegations against the complainant, and that the said article was published in Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 26 "Jansatta" newspaper which was printed at Viraj Press by coaccused R.K. Aggarwal. The complainant has examined himself as CW1 and Sh. Sunil Mangla as CW2.
42. Having discussed the legal provisions applicable to the case, I may briefly discuss the concept of criminal defamation. Defamation, in India, is actionable in two ways - criminal defamation and civil defamation. The purpose of both is distinct. Whereas, criminal defamation is intended to punish the criminal mind which takes someone's reputation for a ride and creates a deterrent effect, civil defamation is meant intended to compensate the victim for the loss of reputation. It is crucial to note that civil defamation is actionable as a tort and there is no legislation to govern the same. Criminal defamation, on the other hand, is incorporates as a penal offence in the Penal Code. A penal provision is always meant to be construed in a strict sense and thus, criminal defamation is made out only if the case falls within the strict parameters of the definition of defamation coupled with the explanations and exceptions. One may wonder whether there could be situations wherein an imputation may give rise to a cause of action for civil defamation, but may not be punishable as criminal defamation. The answer, in my opinion, is in the affirmative. There could be situations wherein loss of reputation may be proved, but intention to harm the reputation may not be proved beyond reasonable doubt. In such cases, criminal defamation may not be made out as it fails to meet the requirements of the provision. However, in such cases, civil defamation Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 27 could be made out on a preponderance of probabilities and may entitled the victim to suitable compensation.
43. Pertinently, there is a fine distinction between "character" and "reputation". The distinction has been carefully noted by the Hon'ble Supreme Court of India in Subramaniam Swamy v. Union of India, a case wherein the constitutionality of criminal defamation was upheld. The Court observed that whereas "character" refers to a person's own moral standing in his own eyes, "reputation" refers to the standing of that person in the eyes of others. However, the Court went on to note that even character, at times, is borne out from the way a person is looked at by others. Essentially, what is relevant is that criminal defamation penalizes causing loss of reputation in the estimation of others. ExplanationIV annexed with Section499 IPC is fairly clear and categorically notes that no imputation could be said to have harmed a person's reputation, unless it leads to a loss of reputation in the estimation of others. Thus, an essential ingredient of defamation is loss of reputation in the estimation of others and not just the victim's own perception about loss of reputation. Needless to observe, the said ingredient is essential to be proved by proper evidence and the burden to do so rests upon the complainant.
44. To do so, the complainant has examined CW2 Sunil Mangla. He deposed that he found some people discussing the article in a contemptuous manner. On hearing so, he asked for a copy of the Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 28 newspaper carrying the article and informed the complainant about it. He further deposed that the complainant and his family members were humiliated after that and avoided social contact. Notably, there is not even one averment saying that the article in question lowered the reputation of the complainant in his estimation. It is immaterial to say that some strangers were discussing the contents of the article in a contemptuous manner, as no such person has been examined by the complainant. Even if they were discussing it in a contemptuous manner, CW2 is not the competent witness to depose about it as it is hearsay with respect to CW2. As a witness, CW2 ought to have deposed as to how the alleged article lowered the moral character or reputation of the complainant in his estimation. In the absence of this element, ExplanationIV of Section499 gets attracted. The effect of the explanation is to take an imputation out of the purview of criminal defamation if it is not proved that the same also lowered the moral character of the victim in the estimation of others.
45. I may now refer to the article in question. The article is published in the issue of "Jansatta" published on 15.03.2002. In the said issue, elaborate coverage is dedicated to the incident of tragic deaths of candidates at Army selection camp at Lucknow due to a septic tank. The issue categorically covers the circumstances leading up to the incident. A peculiar feature of the article is that its subject matter was not per se about the complainant herein. It is an article written amidst a collection of articles on the unfortunate accident cause due to mishandling of septic Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 29 tank. It is an article written to convey the message that there is widespread corruption in the Military Engineering Services (MES) cadre. It mentions the names of two officers, namely the complainant and one Mr. Saxena who was allegedly caught with a bribe. It also refers to a diary recovered from one of the defaulting officers which contained the details of corrupt transactions pertaining to various officers of the Army. It further refers to the manner in which the said diary was concealed in order to save some officers. It also refers to the fact that the son of the complainant Major Mohit Nasa was the incharge of the alleged site, and goes on to note that the site was under left the control of an officer, who was the son of a convicted officer on charges of corruption. The underlying theme of the article is corruption in the MES cadre of Indian Army.
46. So far as the truthfulness of the allegations is concerned, the complainant, in his original complaint and examination in chief, categorically stated that the entire article was false and malicious. Later, during crossexamination, a different story unfolded. CW1 admitted that he was charged on three charges and was found prima facie guilty by a court of enquiry. Thereafter, as per rules and on the basis of material before the court of enquiry, he was referred to the Court Martial for a fullfledged trial. There was a considerable debate during the final arguments with respect to the nature of Court Martial summary or otherwise. It was advanced on behalf of the complainant that the Court Martial was only a summary court martial and nothing major could be Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 30 attributed to the complainant. In my view, the nature of Court Martial is immaterial for the present enquiry. For, the object is to see whether the accused, a reporter, had sufficient and reasonable basis to form a view that the complainant was involved in corruption. During cross examination, CW1 admitted that the Court Martial found him guilty on two charges of corruption. He admitted that he was found guilty of arranging a sale of his shares through a private contractor. Admittedly, he was also found guilty of procuring movable properties without prior intimation to the Army, as required by the applicable rules.
47. It is pertinent to note that the said facts, despite being directly relevant to the case, were never disclosed by the complainant in his complaint. At the core of the judicial process lies the commitment of parties to a full and true disclosure. The facts so disclosed by the complainant during crossexamination are material facts and ought to have formed a part of the complaint. Be that as it may, I do not propose to observe further and may continue my discussion on merits.
48. Reverting to the facts of the case, I find that some of the averments in the alleged article are close to truth and some are not. For instance, the accused persons have failed to show any due diligence conducted by them before using the remarks pertaining to supply of weapons to terrorists or regarding the arrest of the complainant at the Srinagar airport with Rs. 28 lacs. The said two remarks are not substantiated by truth. However, the tone and tenor of the article is Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 31 primarily related to corruption in the Army and involvement of the complainant therein. The said fact is substantiated by the conviction of the complainant in Court Martial. Further, CW1 deposed that he had filed a writ petition before the Hon'ble Jammu & Kashmir High Court to challenge the conviction orders of Court Martial. He deposed that the conviction orders were stayed by the Hon'ble High Court. However, he did not disclose that his writ petitions eventually came to be dismissed by the Hon'ble High Court. It was at the instance of the accused that it came to be disclosed during the trial. Thus, the allegations relating to involvement of the complainant in corruption in the course of his duties could not be said to be unsubstantiated or baseless or malicious. The allegations had a direct link with truth. Although it would not be wrong to observe that the alleged article went a step ahead. However, the question that arises here is whether the said comments were made in good faith or with a malicious intent. For defamation, it is essential that the imputation is intended to harm the reputation of the victim/complainant. Further, Exception9 protects any imputation made in good faith in public interest. Thus, truth is not the only defence in a case of criminal defamation. The accused may very well seek protection under Exception9 if it is shown that the imputation was made in good faith and in public interest. The burden to show as above is, as discussed, preponderance of probabilities.
49. The determination of good faith is not based on a straight jacket formula. It has to be gathered from an overall consideration of the Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 32 circumstances. The accused in this case is a journalist. The standards of good faith and due care have to be ascertained in light of the functioning of journalism. Journalism functions on reasonable diligence and on the basis of inputs received from various sources, both disclosed and undisclosed. The essential function of press is squarely covered as a fundamental right under Article 19 of the Constitution. No doubt, defamation is a reasonable restriction on the said right. However, it has to be construed in a strict sense and scrutiny in criminal defamation must be higher and strict. For, any loose end might have a direct impact on the constitutionally cherished right of freedom of press. Looked at from that perspective, the accused had authored one article amongst a set of articles published in the newspaper of 15.03.2002 which were covering different aspects of the septic tank incident. DW1, son of the complainant, admitted in his testimony that the septic tank accident took place as a result of negligence. He also admitted that he was the incharge of care taking of the said establishment. The fact that the complainant was convicted on two charges of corruption by the Court Martial is also proved. In such circumstances, the accused authored an article touching upon the rise in corruption in Army establishment. Apart from the complainant herein, the accused also mentioned another officer Mr. Saxena who was arrested on charges of corruption. In such circumstances, it cannot be said that the accused was abusing his freedom of expression in a reckless manner. It can also not be said that he had deliberately or selectively targeted the complainant or that he had carried any malice against the complainant, to the exclusion of others. The Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 33 incident was indeed a tragic incident and it was not unusual for a journalist to have covered a story pertaining to the causes of the incident. In fact, it was well within the scope of duties of a journalist.
50. Having said so, I may note that the accused could have conducted better due diligence before publishing the story. However, I fail to see any malice or lack of good faith on the part of the accused. The burden to prove so rested upon the complainant and the complainant has miserably failed to do so.
51. I may also refer to the disclaimer mentioned on page no. 14 of the newspaper which is Ex. CW1/DA. It is a disclaimer in terms of the Press and Registration of Books Act, 1867 which enjoins the newspapers to mention the names of the owner and editor of the newspaper. It further provides that the editor mentioned in the disclaimer shall be deemed to be the editor for the purpose of any criminal or civil proceeding, and a copy of the newspaper shall be sufficient evidence to prove the same. "Editor" is defined in the 1867 Act as the person who controls the selection of matter to be published in the newspaper. Thus, as observed in Aroon Purie (Supra) case, the editor shall be presumed to be responsible for the selection of the matter published in the newspaper for the purpose of a criminal proceeding. In this case, the disclaimer in the newspaper categorically fixed the responsibility of selection of matter on the editor i.e. Ghanshyam Pankaj. Thus, Ghanshyam Pankaj (now expired) was responsible for the selection of matter published in the Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 34 newspaper dated 15.03.2002. However, in my opinion, the said disclaimer on its own shall not absolve the author of the article from its responsibility. The author is the source of imputation and editor is responsible for the selection of the article carrying the imputation. The import of Section7 of the 1867 Act is not to absolve anyone, but only to fix the responsibility on the editor, in addition to others. Be that as it may, I have already discussed the role of author and have already held that the act does not fall within the purview of defamation, for reasons discussed above.
52. So far as accused R.K. Aggarwal is concerned, he was the printer. Defamation by a printer expressly requires the printer to have knowledge or reason to believe that the content was harmful to someone's reputation. Section501 IPC is clear in this regard. Even if I consider the guilt of the accused on merits under Section501 IPC, the complainant has failed to impute any knowledge or reason to believe upon RK Aggarwal regarding the defamatory nature of the article.
53. The contentions pertaining to adoption of presummoning evidence in postsummoning evidence, delayed framing of notice etc. are not being revisited as they have already been decided by the Hon'ble High Court and have been put to rest. In view of the above discussion, I am of the considered view that the complainant has failed to fulfil the ingredients required for criminal defamation. The complainant has failed to prove ExplanationIV of Section499 to the effect that the imputation Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 35 lowered the moral character of the complainant in the estimation of others, CW2 in this case. The circumstances indicate that the incident was covered in the newspaper at length as a special issue and was done in public interest. On a consideration of the factual probabilities, the accused is entitled to the defence of good faith in public interest. Variation from facts, if not motivated by malice or criminal intent, could not result into criminal defamation. Doing so would have a chilling effect on the fundamental right to freedom of speech and expression. Furthermore, the complainant has failed to prove that accused R.K. Aggarwal/printer had any knowledge that the contents of the newspaper were offensive.
54. In view of the aforesaid analysis, I am of the opinion that the complainant has failed to discharge his burden. Needless to observe, the complainant is required to prove his case beyond reasonable doubt and at the same time the accused may take the benefit of the reasonable doubt.
55. Accordingly, the accused persons namely, Prabhat Ranjan Deen and R.K. Aggarwal stand acquitted from the charges levelled against them.
56. File be consigned to record room after due compliance.
YASHDEEP Digitally signed by YASHDEEP
CHAHAL
CHAHAL Date: 2023.07.11 16:06:18 +0530
Announced in the Open Court (YASHDEEP CHAHAL)
On 11th July, 2023. M.M.01 : Patiala House Courts
New Delhi District
New Delhi.
Complaint Case No.44278/2016 Brig. (Retd.) Madan Lal Nasa Vs. Prabhat Ranjan Deen 36