Patna High Court
Deobrat Shastri And Anr. vs Rang Bahadur Singh on 7 August, 1950
Equivalent citations: AIR1950PAT545, AIR 1950 PATNA 545
JUDGMENT Sarjoo Prasad, J.
1. This is an application for quashing or, in the alternative, for transfer of a criminal prosecution pending against the petitioners. Petitioner No. 1, Deobrat Shastri, is said to be the Chief Editor of a daily Hindi newspaper called 'Navarastra'. Petitioner no. 2, Sumangal Prakash, is the Editor of that paper which is printed and published at Patna. In the Dak Edition of that paper dated 30th November 1949, the following news was published:
"Begusarai Samachar--Tin Uazar man Chawal Barbad Karne ka Prayatan--Tin Mahine se Begusari ke kote ka karib tin Hazar man Arwa Chawal Begusarai men akar Para bai. Par ab tak uske bitaran ke liya adhikarion dwara koi prayatan nahi kia ja raha hai. Kaha jata hai ke ukta chawalke stockist Sthanlva Mulya Niyatran ke kramchariyon ko apne ptabhav men lakar ukta chawal ka bitran karne men janbujh kar deri karwarahe hain, jisme kuch aur samaya bit jane par ukta chawalko kharab ghosit kara kar use free sale men beche jane ki anumati prapat kar saken Smatan re be ki ukta chawal ke control dar karib 28 rupeya man hai tatha chor bazar dar katib chalis rupeya man hai."
The English literal rendering of the above quotation would be as follows:
''Begusarai News.--A scheme to waste 3000 maunds of rice.--About 3000 maunds of arwa rice in respect of the quota of Begusarai has been lying in stock for about the last three months since its arrival, but up till now no arrangement has been made for its distribution through the authorities. It is said that the stockist of the said rice having brought under its influence the officers of the local price control department deliberately trying to delay the distribution of the said rice so that after a lapse of some further time, the said rice may be declared unfit and approval may be obtained for its free sale in the market. It may be remembered that the control price of the rice is about Rs. 28 a maund, while the black market price is about Rs. 40."
2. On the publication of this news, the opposite party, who is the manager of the Central Co-operative Bank, Begusarai, the Bank being the sole Government Stockist at the place, filed a petition of complaint before the Subclivisional Magistrate of Begusarai against the petitioners along with three other persons on 1st April 1950, and on the said complaint the Sub-divisional Magistrate issued summonses against the petitioners. It may be stated that the three other persons against whom summonses had been issued are (i) Malchand Agrawal, Chief Editor of another paper 'Vishwamitra', (2) Harishchandra Agrawal, also an Editor of the same paper 'Viehwamitra', this paper having also its head office at Patna, and (3) Jagat Narain Lal Agrawal, a resident of Begusarai who is alleged to be a correspondent of both these papers 'Navarastra' and 'Vishwamitra'.
3. Mr. Nageshwar Prasad who has appeared on behalf of the petitioners has urged various points in asking this Court to quash the proceedings. He contends that the petition of complaint has not been filed on behalf of "a person aggrieved", and therefore, no Court should take cognizance of an offence under Sections 500 and 501, falling under chap XXI, Penal Code, in the absence of such a complaint. Admittedly the Government stockist of rice in Beguearai is the Central Cooperative Bank of Beguaarai of which the complainant-opposite party is the manager. The affairs of the Bank are also under the supervision of a Board of Directors presided over by the Sub-divisional Magistrate of the place. Mr. Nageshwar Prasad, therefore, submits that if the the Bank stood aggrieved by the publication in question, then the complaint should have been either by the Board of Directors or by the President of the Board. The question of distribution of the rice stocked by the Bank as the Government stockist affects the persons who dictate the policy of the Bank, and therefore, it is primarily they who should have lodged a complaint, if at all, because they come within the definition of a person aggrieved According to his contention, the manager is merely an executive authority who has no choice in the matter but be only carries out the biddings of the board of management. On behalf of the complainant opposite party it has been contended on the other hand, that the manager is primarily the person aggrieved. Under Section 2 (9), Bihar and Orissa Cooperative Societies Act, the manager functions as a statutory person. It is not only that he carries on the biddings of the Board presided over by the President but he is also a person who is primarily concerned with the day to day management of the Bank, and it is he who is, therefore, responsible for any laches or mismanagement of its affairs. Therefore, there does not appear to me to be prima facie any reason to bold that the manager is not a person aggrieved as contemplated by a 198, Criminal P. C., In any case this is a question of fact to be decided on the evidence in the case and also upon the rules and procedure relating to the management of the Bank and the distribution of the stock of rice which the Bank holds as a Government stockist. It cannot, therefore, be a sufficient ground for quashing the proceedings at this stage.
4. The next ground urged on behalf of the petitioners is that the petitioners have been summoned jointly with the Editors of the other paper 'Vishwamitra'. This apparently may he irregular because although the cffencee may be similar offences, yet there may be no identity of purpose between the present petitioners and the Editors of the other paper 'Vishwamitra' in making the publication. But this is a matter which is to be considered at the time of trial, and does not affect the issue of summonses against the petitioners. Perhaps the prosecution may have been well-advised to have separate trials of the present petitioners and the Editors of the other daily paper.
5. The most important ground, however, on which the prayer for quashing is pressed is that the petitioners have acted bona fide and in public interest in making the publication, and that the prosecution of the petitioners would be fruitless and harassing. There is no doubt that for the purpose of deciding whether the proceeding should be quashed this Court would ordinarily take into account the allegations made in the petition of complaint itself. If the allegations made in the complaint petition are not sufficient to make out any offence, then in that case obviously a prosecution does not lie, and this Court should direct that the proceedings should be quashed. But this Court can also take notice of certain admitted facts which emerge clearly from the affidavits filed by the parties, and if those facts taken along with the allegations in the complaint petition do not constitute an offence, then the prosecution of the petitioners would be a mere wild goose chase, and it would be useless to waste public time and money over such a prosecution especially when the complainant does not represent a private individual but another public body. I have quoted in full the publication in question. The publication quite clearly shows that the Government stockist of rice with some ulterior motive is making delay in distribution of the rice in stock. It also purports to cast an aspersion against the local officers of the price control department, and seems to suggest that the stockist in question acting in collusion with the officers of the control department is delaying the distribution of the food grains. Prima facie, therefore, the publication in question is an imputation concerning the Central Co-operative Bank of Begusarai which is the stockist and the local officers of the price control department, and it is clear that the imputation is calculated to harm the reputation of these persons. This, in my opinion, is sufficient to constitute defamation within the meaning of Section 499 of the Act. Even an imputation against a company or an association or collection of persons as such does amount to defamation. Therefore, the mere fact that the reputation of the Bank is sought to be affected by the publication does not take it away from the mischief of a defamatory publication. I am saying all this without any prejudice to whatever may happen at the trial of any one of the other accused who are not parties to this application. For the petitioners it has been very strongly argued that a further fact which requires to be proved in an offence under Section 500 or 501 is that the accused should know or have reason to believe that such an imputation will harm the reputation of the person concerned. It is urged that in the complaint petition itself there is nothing to indicate that these petitioners had knowledge or reason to believe that the imputation will harm the reputation of the Bank or that of the price control authorities. In my opinion, this knowledge has to be gathered from the contents of the publication itself. The publication is in the vernacular language, and it has not been contended, nor could it be contended that these petitioners, who are the editors of this daily journal in which the publication in question appeared, did not know the language of the publication. Therefore, it muas be assumed that they had knowledge that the publication was defamatory when per se on a mere perusal of the news, it would appear that the tendency of the publication was to harm the reputation of the persons concerned. Where the matter published is per se defamatory, the only thing, in my opinion, that the prosecution is called upon to prove in the first instance is the fact of the publication itself. When the tenor of the document shows that the publication tenda to harm the reputation of any person, a Court would be justified in gathering from the terms of the matter itself that the publiaher intended to harm or knew or had reason to believe that such imputation would harm his reputation. The position may have been different if there was anything to show that the publication was made at a time when the petitioners were absent and somebody else was put in charge of the journal concerned, and that, therefore, these petitioners could not be attributed any knowledge of the contents of the publication. There is, however, no such case here, and in the circumstances the only possible inference is that the publication was made with their knowledge, and that the document being per se defamatory, they would be deemed to have known or had reason to believe that the imputations contained in the publication tended to harm the reputation of the parties against whom they have been made. This, however, does not conclude the matter.
6. The contention of the learned counsel for the petitioners is that under Section 501, the onus is upon the prosecution to establish not only that the matter is defamatory and that the publishers had knowledge thereof, but that it must be further proved by the prosecution that the publication did not come within any one of the exceptions to Section 499 of the Act, and in particular reliance is placed upon Exceptions 1, 2, 3 and 9 to Section 499. Exceptions 2 and 3 which appear to me to be more relevant ate as follows:
"It is not datamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions or respecting his character, so far as his character appears in that conduct, and no further."
"It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character so far as his character appears in that conduct, and no further."
Whether the Government stockist is a public servant may be a moot question, but there seems no doubt that the third exception may be more pertinent in that it at least answers the term "any person" as used in that exception. The opinion is in respect of conduqt of a person touching a public question and respecting his character so far as it appears from that conduct. The matter undoubtedly does refer to a public question and does affect that conduct of the persons concerned in regard to that public question. The only question then is about the element of good faith. The learned counsel suggests that it must be proved by prosecution that there was want of good faith. As at present advised I do not feel inclined to accept this contention of the petitioners. Ordinarily, if a certain offence comes under the definition of the offence as provided in the Code it would be for the accused to establish that his conduct came within any one of the exceptions to that section of the Code and not for the prosecution to prove the contrary. But I think, the point loses its importance in view of the admitted facts which have emerged from the affidavits. In a supplementary affidavit filed on behalf of the petitioners in reply to the counter affidavit references have been made to the contents of certain letter? which passed between the Editor of the 'Navaraatra', on the one hand, and the then Sub divisional Magistrate of Bagusarai who was the President of the Central Co-operative Bank of Begusarai on the other. It must be observed that the petitioners ought to have made these letters a part of the original affidavit when they filed this application for quashing or transfer, and they not having done so according to the normal rules of procedure, they could not be allowed to refer to additional facts in their supplementary affidavit which was only in reply to the counter-affidavit filed on behalf of the opposite party. The opposite party, however, did not throw any challenge to these facts in reply. The original letters have been produced before this Court, and since my attention has been drawn to these materials which, as I have already said have not been assailed by the opposite party, I cannot ignore them in considering whether it would be expedient to proceed with the trial in view of the facts disclosed by them. The letters indicate that as soon as the Sub-divisional Magistrate made a protest to the petitioners in regard to the falsity of the matters contained in the offending publication; they observed that they did make the publication in ordinary coarse of journalism in order to throw light on facts especially when they concerned the interest of the public. They also observed that if the news in question was inaccurate, they would be glad to publish a contradiction, and they also stated that if the publication had injured the prestige of the Subdivisional Magistrate or that of Government, they apologized for the same. This shows that these petitioners did not act in any bad faith, but they thought that they were making the publication of the news for the good of the public, and they placed reliance upon the local correspondent of the paper. Indeed is one of the letters to the Chief Editor the learned Subdivisioual Magistrate himself say, "We may not blame you and we appreciate the spirit in which you have written the letter". The Sub-divisional Magistrate, however, insisted that the local correspondent of the paper who had deliberately sent those false news for publication should be prosecuted, and wanted that the original correspondence should be produced by the petitioners before him; and probably because these petitioners failed to comply with this request of the learned Sub-divisional Magistrate, the Magistrate thought that the petitioners also should be joined as accused along with the correspondent; otherwise these petitioners should have faired as witnesses against the correspondent. Whatever the other compelling factor may be for impleading these petitioners as accused in the case, there is no doubt from the letters that even the Subdivisional Magistrate thought that these petitioners were not to blame in the matter.
7. Mr. Baldeo Prasad Singh for the opposite party very vehemently contends that these opinions expressed by the Sub-divisional Magistrate are in no way binding upon the complainant who is the manager of the Central Co-operative Bank. It must be borne in mind that admittedly the Sub-divisional Magistrate is also the President of the Board of Directors and presumably the prosecution could not have been launched without his knowledge or approval. In fact the learned Magistrate in his explanation himself admits that before filing the complaint the matter had been referred to the Board of Directors. Therefore, the facts disclosed in the letters cannot be said to be irrelevant for the purposes of this prosecution. A. newspaper editor has a public duty to ventilate abuses, and if an official is remiss in the discharge of his duties, a newspaper would be absolutely within its rights in publishing facts even derogatory to such official. But it must be said at the same time that the editor or publishers of the newspaper must get hold of probable facts. They should be watchful not to publish defamatory attacks upon individuals unless they have taken reasonable pains to ascertain that there are good grounds for believing the information sent to them to be true; in other words, they must act with due care and attention. But in judging the conduct of a newspaper editor a Court of law cannot weigh the materials too finely in the balance, and has to excuse a little exaggeration here or a small innuendo there. Newspapers are like the proverbial watchdogs of national interest and public welfare. They may sometimes have to bark even on false alarm but the alarm must be there. The simile is not very felicitous but is at any rate quite expressive. In this case there does not appear to be any reason why the publishers should not have relied upon the correspondent concerned. This publication is said to have faicly a large circulation in the outlying parts of the province, and those responsible for it must have chosen their correspondents with care. The larger the circulation of the paper, the greater undoubtedly is the responsibility upon the shoulders of the publishers to see that defamatory statements which are incorrect do not find place in the paper, because the effect is likely to be more mischievous. But in the circumstances disclosed on the admitted materials in this case, there is nothing to indicate that these petitioners have not acted with due care and attention. Therefore, even if the publication was defamatory, there was no want of good faith on the part of these petitioners. They in fact immediately tendered an apology when they came to know of the publication being inaccurate or false and Were prepared to publish any contradiction that the authorities liked to send. On these materials, in my opinion, it would be useless to pursue these petitioners any further as they might well claim the benefit of third exception to Section 499 of the Code. On these grounds, I allow the application of these petitioners and direct that the proceedings against them should be quashed.
8. It is unnecessary for me to indicate that the opinion which I have expressed above as to good faith on the part of these petitioners does not in any manner affect the trial of the local correspondent who is also an accused in the case. It may be found that he had no justification for sending the news which may be held to be false and mischievous and done with some ulterior purpose. For the opposite party it has been contended, and indeed this was the main consideration as the letters indicate for the petitioners being impleaded as accused, that the petitioners failed to assist the authorities by refusing to produce the original correspondence leading to the publication in question. The document undoubtedly would be an important piece of evidence in the trial of the local correspondent. The petitioners' counsel assures me that there is no reason to think that the petitioners would not comply with the orders of the Court made in course of the trial of any accused. The petitioners are editors of an important journal, and it is a part of their public duty to co-operate in the administration of justice and to see that justice is done. They cannot, therefore, withhold from the Court any relevant material that may be called for from them or even refuse to give evidence if required to do so. Even if they do, they can be compelled to obey the orders of the Court under due processes of law.
9. In view of what I have said above, it is unnecessary to deal at length with the grounds on which the application for transfer has been pressed before me. The case has been transferred for disposal to a Munsif Magistrate of Begusarai. The allegations which have been made are all directed against the then Sub divisional Magistrate. It is true he went to the length of cancelling or forfeiting the bail bond of those petitioners on account of their failure to attend Court on a day when the proceedings had been already stayed by this Court. The petitioners may have been ill-advised in not being present in Court on the date in question which in terms of the bail bond they were bound to do, and their failure to appear may have annoyed the learned Magistrate yet I do not see any sufficient reason why the learned Magistrate should have gone to the length of forfeiting the bail bond of these petitioners. The learned Magistrate should have realised that there was some justification for the absence of these petitioners, because they were given to understand that the proceedings having been stayed by this Court, it was unnecessary for them to appear on the date fixed. This may be a wrong advice, but they acted upon this advise, and they are persons who are carrying on important public duties as Editors of a daily journal. Therefore, the annoyance on the part of the learned Magistrate in forfeiting their bail bond may have raised a genuine apprehension in the mind of these petitioners to move for transfer. But the case is now pending before the Munsif Magistrate and the Sub-divisional Magistrate himself has been transferred to Patna. The mere fact that the local correspondent who is also an accused in the case has instituted a suit against that Sub-division at Magistrate for some reason of his own connected with this prosecution does not afford any good ground for transfer. There is no reason to believe that the learned munsif Magistrate who is now the trying Magistrate will be in any manner influenced by extra-judicial considerations. Nor does the ground of convenience on which the petition has been pressed on behalf of the petitioners appeal to me. It may be that these petitioners or rather four of the accused are residing in Patna and carrying on business here. But so far as the witnesses are concerned they would be witnesses largely from Begusarai. The Bank, as stated in its counter affidavit, has to carry on the sales according to certain procedure and supply rice to a particular section under certain permits. These persons will have to be examined and also their books of account produced. Under these circumstances, even the balance of convenience leans in favour of the trial being held at Begusarai. In my opinion, therefore, the prayer for transfer is without merit.
10. I have held that the proceedings against these petitioners should be quashed and direct accordingly. The rule is made absolute.