Indian Kanoon - Search engine for Indian Law

Orissa High Court

Ashok Kumar Jain And Another vs State Of Odisha And Another .... ... on 6 April, 2023

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                         CRLMC No.2125 of 2022

     Ashok Kumar Jain and Another           ....           Petitioners
                                        Mr. Anshuman Ray, Advocate



                                -Versus-


     State of Odisha and Another         ....      Opposite Parties
                     Mr. Satyabrata Panda, Advocate for O.P. No.2
              CORAM:
              JUSTICE R.K. PATTANAIK

                DATE OF JUDGMENT:06.04.2023

1.

Instant petition under Section 482 Cr.P.C. is at the behest of the petitioners assailing the impugned order dated 5th April, 2022 passed in 1CC Case No.26 of 2022 by the learned S.D.J.M., Angul on the grounds inter alia that no prima facie case of criminal defamation is made out against them which has been alleged by opposite party No.2.

2. In the instant case, opposite party No.2 filed a complaint before the learned court below registered as 1CC Case No.22 of 2019 and thereafter, by an order under Section 156(3) Cr.P.C., Angul P.S. Case No.227 of 2019 was registered under Sections 499, 500, 501, 502, 294 and 506 read with 34 IPC, later to which, investigation was commenced, however, a final report was submitted at the end, in response to which, a protest petition was filed and the same was treated as a complaint in 1CC Case No.26 of 2022, wherein, the order of cognizance was passed under Annexure-4 against the petitioners.

3. In fact, the petitioners were by then the Present and Secretary of Angul District Chamber of Commerce and Industries CRLMC No.2125 of 2022 Page 1 of 8 Ashok Kumar Jain and Another Vrs. State of Odisha and Another respectively and according to them, they did not play any role and committed no offence of defamation but opposite party No.2 with a revengeful attitude filed the complaint with false allegations. It is pleaded that even by considering the materials available on record, no case is made out against the petitioners as basic ingredients of the alleged offences are conspicuously absent. It is stated that opposite party No.2 has also instituted a civil suit in C.S. No.219 of 2018 against the petitioners and others pending in the file of the learned Civil Judge (Senior Division), Angul demanding compensation of Rs.1 crore from them on account of damage to his reputation. According to the petitioners despite a case registered by the order of the learned court below and investigation by the local police, no case was found and established which resulted in the submission of final report, however, on the strength of a protest petition, the impugned order under Annexure-4 came to be passed.

4. Heard Mr. Ray, learned counsel for the petitioners and Mr. Panda, learned counsel for opposite party No.2.

5. The opposite party No.2 filed the complaint against the petitioners and others including the editors of the newspapers, namely, Samaj and Prameya besides the other office bearers of the Angul Chamber of Commerce and Industries (in short 'ADCCI'). Later to the filing of the complaint, the learned court below directed registration of a case by an order under Section 156(3) Cr.P.C. Consequently, Angul P.S. Case No.227 was registered on 27th March, 2019. However, as earlier mentioned, ultimately, a final report was submitted. On receiving a protest petition from opposite party No.2 treated as a complaint, the learned court below took cognizance of the alleged offences vide Annexure-4.

Ashok Kumar Jain and Another Vrs. State of Odisha and Another

6. Mr. Ray, learned counsel for the petitioners would submit that investigation was conducted on the allegation of opposite party No.2, however, a final report was furnished, as no case could be established against the petitioners. It is further submitted that no iota of evidence is on record to show a prima facie case of defamation. It is also submitted that the offences under Sections 294 and 506 IPC are not established as there is no material to show threat or intimidation directed against opposite party No.2 and in that regard, the decision in Binit Kumar and Others Vrs. State of U.P. (2017) 13 SCC369 was cited. Mr. Ray, learned counsel for the petitioners also submits that this Court should exercise the inherent jurisdiction and quash the impugned order under Annexure-4 in order to advance the cause of justice since the complaint filed by opposite party No.2 is manifestly attended with an ulterior motive in order to wreak vengeance against the petitioners.

7. Mr. Panda, learned counsel for opposite party No.2, on the other hand, submits that since the learned court below considering the complaint and receiving evidence during enquiry later to the examination of the complainant under Section 200 Cr.P.C. reached at a conclusion that the petitioners have committed the alleged offences, the impugned order under Annexure-4 is therefore not liable to be interfered with and set aside. It is submitted that the alleged conduct of the petitioners is tainted with malafide and it was not in good faith when notice was published in the newspapers on 8th April, 2018. Since it was clearly in bad faith and primarily directed against opposite party No.2 to harm and damage his reputation, the learned court below having taken cognizance of the alleged offences, according to Mr. Panda, learned counsel for opposite party No.2, it calls for no interference.

Ashok Kumar Jain and Another Vrs. State of Odisha and Another

8. On a reading of the complaint, the Court finds that notice was published in the newspapers, such as, Samaj and Prameya on 8th April, 2018 indicating therein about the resolution dated 28th March, 2018 of the Executive Committee headed by the President and General Secretary, namely, the petitioners and its decision to terminate the primary membership of opposite party No.2 from ADCCI for a period of eighteen years with effect from 28th March, 2018 as per the bylaws of ADCCI, Angul. The said notice which was published in newspapers is claimed by opposite party No.2 to be defamatory and was intended to damage his reputation. The allegation is that the petitioners being the President and Secretary of ADCCI, in connivance with the others including the Executive Body Members are responsible for the alleged notice. Such an action according to opposite party No.2 was by not providing any opportunity of hearing or considering showcause before taking a decision to terminate him from the primary membership of the ADCCI, Angul. In fact, opposite party No.2 claimed that he requested the petitioners to provide relevant documents and even issued a notice to them as to the circumstances under which such an action was taken by the ADCCI but there was no response which clearly suggested that the public notice which was released in the newspapers was primarily to defame him and damage his reputation which he has built over the years being the Ex-President of ADCCI and an entrepreneur. Mr. Panda, learned counsel for opposite party No.2 submits that since the petitioners are responsible for such a decision and publication of notice in local newspapers and it was meant to affect and damage the reputation of the complainant, considering the same, the learned court below took cognizance of the alleged offences against them.

Ashok Kumar Jain and Another Vrs. State of Odisha and Another

9. The question is, whether, publication of notice in newspapers regarding termination of primary membership of opposite party No.2 amounts to an act of criminal defamation? It is alleged by opposite party No.2 and as revealed from the facts of the complaint that such notice was published without any justification and was intended to damage his reputation. Section 499 IPC defines defamation which means any words either spoken or intended to be read or by science or by visible representation makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation is to harm reputation of such person is said to have defamed that person except where it falls within one of the exceptions. The explanation to Section 499 IPC covers as to what conduct would also amount to defamation with the exceptions and illustrations. To be more precise, Explanation 1 to 4 provides certain aspects which would amount to defamation and deals with the expression harming the reputation of such person which is necessary and integral part of Section 499 IPC. So, therefore, the offence of defamation consists of the essential ingredients, such as, (i) making or publication of imputation concerning a person; (ii) such imputation must have been made by words either spoken or intended to be read or by science or by visible representation; and (iii) said imputation must have been made with the intention of harming or with a knowledge of having reason to believe that it would harm reputation of the person.

10. The offence of defamation is punishable under Section 500 IPC and the object of the provision is to protect the fundamental right of a person which includes reputation which is again a part of right to enjoyment of life, liberty and property. In this regard, it would be apposite to make a mention of the judgment of the Apex Court in Kiran Bedi Vrs. Committee of Inquiry and Another CRLMC No.2125 of 2022 Page 5 of 8 Ashok Kumar Jain and Another Vrs. State of Odisha and Another AIR 1989 SC 714, wherein, the observations from D.F. Marion Vrs. Davis 55 ALR 171 was reproduced which is to effect that the right to the enjoyment of a private reputation unassailed by malicious slander is of an ancient origin and is necessary to human society; good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. In Board of Trustees of the Port of Bombay Vrs. Dillipkumar Raghavendranath Karmi and Others (1983)1SCC124, the Apex Court held that right to reputation is integral to right to life of a citizen under Article 21 of the Constitution. Similar is the view expressed in Vishwanath Vrs. Sau. Sarla Vishwanath Agrawal 2012 (6) SCALE 190. So, therefore, reputation of a person is to be guarded jealously since because it is fundamental right to enjoyment of life and liberty and integral part of Article 21 of the Constitution of India.

11. In the case at hand, it is contended that none of the exceptions of Section 499 IPC applies as the mischief by the petitioners was intended to damage his reputation and therefore, considering the fact that the notice of termination was published in local newspapers widely circulated in the State, the real intention was to damage image and reputation of opposite party No.2 and therefore, the learned court below rightly took cognizance of the alleged offences vide Annexure-4. Whether mere publication of a notice in newspapers amounts to defamation and was it intended to defame opposite party No.2? Is the decision of the petitioners as the office bearers of ADCCI and others to publish notice in local newspapers is an actionable defamation? In claimed that Rajiv Kumar Yadav Vrs. The Allahabad High Court while dealing with a similar situation, wherein, the complainant was served with a public notice of having been suspended from service, it was claimed that the said act was intended to defame and CRLMC No.2125 of 2022 Page 6 of 8 Ashok Kumar Jain and Another Vrs. State of Odisha and Another damage his reputation but the Court in the decision (supra) held that an offence of defamation is not established. It is to be considered if the necessary ingredients of Section 499 IPC are proved to establish an act of defamation. As earlier stated, an offence of defamation constitutes the basic ingredients of making or publishing any imputation about a person; imputation may be by words either spoken or intended to be read or by science or visible representation and it was with an intent to harm or with the knowledge or belief that it is likely to harm the persons' reputation. In the instant case, for the reason that the public notice was published in local newspapers circulating the decision of termination of his membership, opposite party No.2 alleged that it was with the intention to defame him. The opposite party No.2 was the Ex-President of ADCCI and is a businessman of Angul and he was removed from the primary membership of the ADCCI, a decision which was taken by the Executive Committee headed by the petitioners and such unanimous decision was made to publish in the newspapers. The extract of the notice reproduced in complaint shows that the decision of the Executive Committee of ADCCI vide resolution dated 28th March, 2018 about the termination of opposite party No.2 and another from the primary membership of ADCCI for a period of eighteen years was published and information was shared with all concerned and also the general public besides State and Central Government offices. Such publication of a notice in newspapers without more which merely notified termination of primary membership of opposite party No.2, in the opinion of the Court, by itself would not constitute an offence of defamation. It is not an act by which any imputation was made or published in any newspaper affecting the reputation of opposite party No.2. With such notice published releasing the information regarding termination from primary membership of opposite party No.2 cannot be termed as CRLMC No.2125 of 2022 Page 7 of 8 Ashok Kumar Jain and Another Vrs. State of Odisha and Another an act of defamation punishable under Section 500 IPC. By no stretch of imagination, considering the notice published in local newspapers, it can be said that the petitioners committed an offence of defamation. It is not a case either where anything can be read between the lines to convey that the publication of notice was with a hidden purpose and intention to defame opposite party No.2. An imputation should be direct or by such other means which is easily inferable or can be deduced from its content. To allege defamation for a circulation of notice for whatever reasons is thoroughly misplaced and misconceived. The language of the notice is no defamatory which pure and simple declared the decision of the ADCCI. Any such decision even without any showcause may invite a challenge but certainly carries no criminal culpability unless it falls within the ambit of defamation as defined in Section 499 IPC.

12. Accordingly, it is ordered.

13. In the result, the CRLMC stands allowed. Consequently, the impugned order dated 5th April, 2022 passed by the learned S.D.J.M., Angul is set aside. As a necessary corollary, the criminal proceeding in connection with 1CC Case No.26 of 2022 is hereby quashed vis-à-vis the petitioners.

(R.K. Pattanaik) Judge Uksahoo CRLMC No.2125 of 2022 Page 8 of 8