Karnataka High Court
Smt Abhilasha Ojha vs M/S Bid & Hammer Auctioneers (P)Ltd., on 24 September, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.7591 OF 2016
C/W
CRIMINAL PETITION NO.7592 OF 2016
IN CRIMINAL PETITION NO.7591 OF 2016
BETWEEN:
SMT ABHILASHA OJHA
AGED ABOUT 39 YEARS
PRODUCTION EDITOR
DELHI ART GALLERY,
NO.11, HAUZ KAUS VILLAGE,
NEW DELHI-110 016
... PETITIONER
(BY SMT: LAKSHMY IYENGAR, SENIOR ADVOCATE A/W
MS. KRUTIKA RAGHAVAN &
SMT: SINCHANA M.R., ADVOCATES)
AND:
M/S BID & HAMMER AUCTIONEERS (P) LTD.,
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT:
DADA HOUSE, 136,
7TH MAIN ROAD, 5TH BLOCK,
2
JAYANAGARA,
BANGALORE-560041
REPRESENTED BY ITS AUTHORIZED SIGNATORIES
& DIRECTORS,
MR ANKUSH DADHA
S/O MAHIRA DADHA,
AGED ABOUT 32 YEARS,
MR. T.N. RAGHU &
Ms. APOORVA DADHA.
... RESPONDENT
(BY SRI: RAGHURAM CADAMBI, ADVOCATE FOR
SRI: C.K. NANDAKUMAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE ORDER DATED 29.07.2016 PASSED BY
THE II ACMM, BANGALORE IN C.C.NO.20474/2016 AGAINST THE
PETITIONER.
IN CRIMINAL PETITION NO.7592 OF 2016:
BETWEEN:
SRI ASHISH ANAND,
AGED ABOUT 46 YEARS
HAVING HIS PLACE OF WORK AT
NO.11, HAUZ KHAS VILLAGE,
NEW DELHI-110 016
... PETITIONER
(BY SMT: LAKSHMY IYENGAR, SENIOR ADVOCATE A/W
MS. KRUTIKA RAGHAVAN &
SMT: SINCHANA M.R., ADVOCATES)
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AND:
M/S BID & HAMMER AUCTIONEERS (P) LTD.,
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF COMPANIES ACT,1956,
HAVING ITS REGISTERED OFFICE AT:
DADA HOUSE, 136,
7TH MAIN ROAD, 5TH BLOCK,
JAYANAGARA,
BANGALORE-560041
REPRESENTED BY ITS AUTHORIZED SIGNATORIES
& DIRECTORS,
MR ANKUSH DADHA
S/O MAHIRA DADHA,
AGED ABOUT 32 YEARS,
MR. T.N. RAGHU &
Ms. APOORVA DADHA.
... RESPONDENT
(BY SRI: RAGHURAM CADAMBI, ADVOCATE FOR
SRI: C.K. NANDAKUMAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE ORDER DATED 29.07.2016 PASSED BY
THE II ACMM, BANGALORE IN C.C.NO.20474/2016 AGAINST THE
PETITIONER.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioners are accused Nos.2 and 3 in the private complaint filed by the respondent seeking their prosecution for 4 the offences punishable under sections 499 and 500 of IPC read with section 66A of Information Technology Act, 2000.
2. The respondent M/s.Bid & Hammers Auctioneers Pvt. Ltd., presented a complaint against the petitioners and others contending that with an intention to malign the name of the respondent which was an established business house for auction of art-crafts and paintings the accused published defamatory articles in Business Standard and on Facebook.
3. The material allegations made against the petitioners herein find place at paras 12, 15 and 16 of the complaint which is extracted herebelow:-
12. On 26.06.2014, a day before the date of auction, the third accused, posted a series of defamatory posts on her facebook page, sharing news articles from various newspapers saying "There's supposed to be an auction in New Delhi by Bid & Hammer auction house. Lots of works there are fake. Thankfully, print media is picking up story. So anyone planning to be there to buy art. AVOID". Further on the day of the auction i.e., 27.06.2014, the third accused shares a post by the first and second accused 5 which was originally posted in the first accused facebook group which says, "The market of fakes is not a good sign for Indian art. Bid & Hammer, the Bangalore-based auction house, which has an event in New Delhi this evening, is selling incredible number of fakes according to media reports. MF Husain Foundation has issued a legal notice to the auction house and artists are increasingly talking about how the auction house is doing great disservice to Indian art. Spread the news-support 'real' art". This post was shared with a newspaper article published by the third accused. The third accused further posts "Many of the artworks by Modern Masters at the Bid and Hammer auction in New Delhi today are fakes, says Times of India. Excellent Story. Do read." and shares an article published by Times of India. The third accused, had posted many such posts in her twitter account and she is also a part of the third accused. Copies of the facebook and twitter account page with the defamatory posts are produced as Document No.3.
15. On 26.06.2014, the third accused, published an article in its newspaper with the headline "Art fraternity calls for regulatory body to check fakes". The managing director of first accused has made many defamatory statements 6 in this article. He says. "There is a rampant market for fake art in India because of which may people are duped and art fraternity is getting a bad name." The article refers to a move to bring in a regulatory body to check fakes and it states "This move came after many fraternity members realized 90 percent of the works offered in an auction to be held in the capital June 27 are fake. To this the managing director of first accused says, "Many people have raised objection about these works to be auctioned...." This clearly shows the intention of the article was to defame the complainant, by publishing this article just a day before the auction and knowing fully well that readers of the Business Standard include leading industrialists, who are well known connoisseurs of art and potential customers of the complainant. A copy of the article dated 26.06.2014 published in the Business Standard is produced as Document No.4.
16. On 27.06.2014, on the day of the auction, the third accused publishes one more article as a follow up to its first article with the headline, "Artists, experts urge for regulatory body to tackle fake art". This article once again has statements made by the managing director of the first accused and is defamatory as it once 7 again mentions the auction to be held by the Complainant. A copy of the article dated 27.06.2014 published in the Business Standard is produced as Document No.5.
4. Learned counsel for the petitioners submits that the averments made in the complaint and the contents of the publication referred to by the respondent do not attract the ingredients of the offences under section 499 of IPC or section 66A of the Information Technology Act. Going by the averments made in the complaint, publications were made by the newspapers run by accused Nos.4 to 7, but the complainant/respondent has entered into a composition with accused Nos.4 to 7, as a result, the charge under section 499 of IPC cannot stand against the present petitioners. Petitioners have not caused any publication of the alleged defamatory articles. According to the complainant, the alleged publication contained the opinion of accused No.2. There is nothing on record to show that accused No.2 has made any publication of the alleged defamatory contents either on facebook or in the newspapers. Under the said circumstances, learned Magistrate 8 has patently erred in taking cognizance of the alleged offences and issuing summons to the petitioners namely accused Nos.2 and 3. Further, referring to the cause-title of the complaint, learned counsel has emphasized that accused Nos.2 and 3 are shown to be the permanent residents of New Delhi. In view of the bar contained in proviso to section 202 of Cr.P.C., learned Magistrate was not competent to issue summons to the petitioners without holding enquiry as mandated under the said provision. In support of the said submission, learned counsel has placed reliance on the decision of this court in FRONT ROW MEDIA PVT. LTD., & Others vs. M/s.BID & HAMMER AUCTIONEERS PVT. LTD. & Another in Writ Petition Nos.3154- 3158/2016, disposed of on 24.06.2019, wherein the proposition of law laid down by the Hon'ble Supreme Court in ABHIJIT PAWAR vs. HEMANT MADHUKAR NIMBALKAR & Another, (2017) 3 SCC 528 has been followed and thus sought to quash the proceedings initiated against the petitioners.
5. Refuting the above argument, learned counsel for respondent emphasized that the petitioners have intentionally 9 published defamatory contents against the respondent through the medium of facebook post as well as by publication in newspapers. The averments made in the complaint clearly go to show that the contents of the publications were per se defamatory. The timing of the publication indicates that the petitioners have resorted to the offending publication just on the eve of the auction sale held by the complainant/respondent, in a bid to inform the general public that the auction held by the complainant/respondent dealt with fake paintings and artworks. This publication directly refers to the second respondent and under the said circumstances, there being prima facie material making out the ingredients of the offence under section 499 of IPC, learned Magistrate was justified in issuing process to the petitioners and thus seeks to dismiss the petition.
6. I have bestowed my careful thought to the contentions urged at the Bar and have perused the averments made in the complaint as well as the offending publications relied on by the complainant in support of the accusations made against the petitioners.
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7. There is nothing in the entire complaint to suggest that accused No.2 has made any publication touching the business dealings of the complainant. From the portion extracted above, it is clear that the alleged publication is stated to have been made by accused No.3 in the newspaper as well as on the facebook. As such, the charge levelled against accused No.2, in my view, is totally baseless and cannot be sustained. Even otherwise, the publication made by accused No.3 does not contain any defamatory matter attributed to accused No.2. According to the complainant, accused No.3 has published the opinion expressed by accused No.2 with regard to the rampant fake art crafts that is being circulated in the market. This averment, even if read in its entirety, would go to show that accused No.2 has not published any defamatory contents against the complainant. In the said circumstances, basic ingredients of section 499 of IPC having not been attracted insofar as accused No.2 is concerned, in my view, prosecution of accused No.2 for the alleged offence is legally untenable and cannot be sustained. 11
8. Coming to the accusations made against accused No.3 is concerned, of course, there are clear allegations in the complaint that the alleged offending articles were published by accused No.3. I have gone through these articles. But I do not find anything in these articles to suggest that the contents thereof even remotely refer to the respondent. In this context it may be relevant to refer to para 15 of the complaint which reads as under:-
"There is a rampant market for fake art in India because of which many people are duped and art fraternity is getting a bad name".
Likewise, with regards to publication dated 27.06.2014, it is stated that accused No.3 published a follow up article with the caption, "Artists, experts urge for regulatory body to tackle fake art". There is not even a remote reference to the complainant in this article. As such, there is no basis for the respondent to contend that the said publication has tarnished the image of the respondent or the business concern run by him. No doubt, the publications made in the facebook directly refer to the respondent and therefore, to this extent, it can be said that the 12 said imputations relate to the respondent thereby furnishing a cause of action to the respondent to proceed against accused No.3. But in view of the provisions of section 202 of Cr.P.C., even to take cognizance of the alleged offences against accused No.3, learned Magistrate was required to hold an enquiry as contemplated therein before proceeding further in the matter.
9. Dealing with the amplitude and scope of Section 202 of Cr.P.C Hon'ble Supreme Court of India in ABHIJIT PAWAR VS. HEMANT MADHUKAR NIMBALKAR AND ANOTHER reported in (2017) 3 SUPREME COURT CASES 528 in para 12.1.1 has held as under:
"12.1.1. It is submitted that the procedure stipulated in the said provision is mandatory which imposes an obligation on the Magistrate to ensure that before summoning an accused, who resides beyond his jurisdiction, the Magistrate shall make necessary inquiries into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground to proceed against the accused. It was submitted that indisputably A-1 13 resides outside the jurisdiction of the trial court at Kolhapur as he is resident of Pune."
In para 23, the Hon'ble Supreme Court has laid down as under:
"23. Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process."
10. In view of the ratio laid down in the aforesaid decision and in the light of the specific provision contained in Section 202 of Cr.P.C., the impugned order passed by learned Magistrate issuing summons to the petitioners being violative of provisions of section 202 of Cr.P.C., cannot be sustained. For all these reasons, impugned proceedings, in my view, are liable to be quashed.
Accordingly, the petitions are allowed. Impugned order dated 29.07.2016 and consequent proceedings initiated against 14 the petitioners in C.C.No.20474/2016 on the file of II ACMM, Bangalore are quashed.
Sd/-
JUDGE Bss