Orissa High Court
Dr. Madhav Chandra Ransingh vs Bijoy Kumar Tripathy And Ors. on 21 November, 1994
Equivalent citations: 1995(2)ALT(CRI)24, 1995(I)OLR297
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner's complaint against the opposite parties for alleged commission of offence punishable under Section 500 of the Indian Penal Code, 1860 (in short, 'IPC') having been dismissed, present application has been filed for revision under Section 401 of the Code of Criminal Procedure, 1973 (in short, the Code ).
2. Petitioner filed a complaint inter alia stating that on account of a publication in the daily newspaper .The Pragatibadi", under the heading SAMBADA PATRA AGENT KU AKRAMANA published with the intention to defame him, he was defamed and the opposite parties (the news-reporter, publisher Managing Director and Editor of the concerned newspaper) were liable for punishment in terms of Section 500, IPC. The learned Judicial Magistrate, First Class Banpur dismissed the complaint under Section 203 of the Code, being of the view that the publication was protected in terms of Fourth Exception to Section 499, IPC.
3. The learned counsel for petitioner submitted that at the stage of cognizance, the Court is not concerned with the possible defence and is not empowered to consider applicability of Fourth Exception to Section 499, IPC. Additlonaly it is submitted that the news-item in question did not relate in its entirety to proceeding in ICC 5 of 1993 before the learned JMFC, Banpur, therefore, the newsitem being not in connection with a judicial proceeding was covered by Fourth Exception to Section 499, IPC. Mr. B. B. Mohanty, learned counsel for opp. party Nos. 2, 3 and 5 on the other hand submitted that at the time of taking cognizance the Court can also look into possible defence. Even though he accepted that the entire news-item did not relate to (CC 6 of 1993 of the Court of JMFC, Banpur, yet he submitted that the news-item related to another judicial proceeding, and therefore, was clearly covered by the Exception. He filed a certified copy of the first information report dated 27-12-1992 in GR Case No. 246 of 1992 of the Court, Judicial Magistrate First Class Banpur.
4. Various Sections of IPC protect a person's personal rights and Property, Section 499 protects his personal reputation But in doing so. it takes into account the the fact that while personal character is a man's best asset, it has great potentialities for public mischief. Sec, 499 holds a balance between its malicious assailment and justifiable exposure. The section together with Us four explanations secures the one by constituting it an offence and the ten exceptions secure the other by condoning the crime. In defining the offence, the main clause contains three important words, the person, his reputation and the harm with the necessary mens rea which in the defamatory clause will be presumed if the imputation is defamatory per se. No resultant harm need be provad sincef the expression is itself defamatory, the publisher must know that it will harm the reputation of one concerning whom it is made. The first two explanations extend the meaning of person and the remaining two enlarge the scope of the offence when it is covered as it often is, and is not, without extraneous explanatory evidence, quits obvious, and the ten exceptions enumerate the several causes of privilege and justification in which the higher interest of self and society neutralise the crime.
All the exceptions under Section 499 IPC may be classified in five groups all relating to occasions as to which qualified privilege is recognized:
(I) exception relates to plea of Justification;
(ii) exceptions 2, 3, 5 and 6 relate to plea of fair comment on a matter of public interest;
(iii) exceptions 7 and 8 cover the cases of censure by a lawful authority passed in good faith and accusation made to a person in lawful authority in good faith;
(iv) exceptions 9 and 10 cover the cases of imputations made in good faith, by a pers6n for the public good, and the case of caution intended for the good of the person to whom it is conveyed or for the public good; and
(v) exception 4 covers the plea of fair report of the public proceedings It may be stated that good faith finds place in all the exceptions to the section except Exceptions 1 and 4.
5. Publication of the news-item is not disputed. The only dispute relates to applicability of the Fourth Exception. The concept of defamation is as old as the hills and Indian Penal Code may no distinction between the written and spoken defamation and the term 'defamation' includes both libel and slander. The classical definition of the term, however, has been given by Mr. Justice Cave in the case of Scott v. Sampson : (1882) 8 QBD 491 as a "false statement about a man to his discredit In Sim v. Stretch: (1936) 52 TLR 669. Lord Atkin observed that "would the words land to lower the complainant in the estimation of the right thinking members of the society generally". What constitutes defamation ? In short, it is ah imputation made against another person, which is and believed by the maker to be injurious to his reputation Such imputation may be made in one or more of the four ways specified in Section 499 IPC that is to say (I) by spoken or (ii) written words; (iii) by sighs or (iv) visible representations. It brings under the criminal law the person who publishes as well as the person who makes the defamatory imputation. The gist of the offence lias in the dissemination of harmful imputation. The authors of IPC observed (at Note R, page 176) that the essence of the offence of defamation consists in its tendency to cause that description of pain, which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures and those inconveniences in which a person, who is the object of such unfavourable sentiments, is exposed. Winfield on Torts defines defamation as "the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally : or which tends to make them shun or avoid that person in the book "The Law of Defamation", by Richard O Sullivan QC and Roland Brown, it is stated that Defamation may be broadly defined as a false statement of which the tendency is to disparage the good name of reputation of another person . Praser on Libel and Slander defined, it as "a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade". The definition was approved by Mc Cardie J. in Myroff v. Sleight; (1921)37 TLR 646.
6. Defences available to the accused under the exceptions to Section 499 have to be proved as strictly as if the complainant were being tried for the offence imputed to him. The accused pleading justification virtually becomes the accuser and that is why the burden has been placed by the law upon him. Where the publication is libellous per se the proof of the publication makes a Prima facie case, and it is then for the accused to offer proof to show, that what was said, was true, or was published with good motives and for justifiable ends. The freedom of the journalists is an ordinary part of the freedom of the subject and to whatever lengths the subject in general may go, so also may the journalists but, apart from statute law, their privilege is no other and no higher. he burden of proof to plead protection under the exceptions is on the accused. Where he is called upon to prove that his case falls under an exception, law treats the onus as discharged if he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus to prove the guilt of the accused beyond a reasonable doubt. The plea of justification of the charge levelled by the accused has to be proved strictly as if it were an indictment. The law is stated succinctly by Lord Halsbury as given below;
"If the statement complained of imputes the commission by the plaintiff of a criminal offence the defendant, to succeed in his plea of justification, must prove the commission of the offence charged as strictly as if the plaintiff was being prosecuted for the offence.
7. Where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open Court, then the publication, without malice, of a fair and accurate report of what takes place before that tribunal is privileged. But. a report of judicial proceedings cannot be published if the Court has prohibited the publication of any such proceedings, or where the subject-matter of the trial is obscene or blasphemous. Exception Fourth which is the pivotal provision in the case at hand is one of the two exceptions which do not make a reference to good faith What is needed is that the report of the proceedings of a Court of justice or the result of any such proceedings, should be substantially true even though it may not be for public good. In other words, the publication should be a substantially true report it need not be true absolutely word per word but taking the whole thing, it must be a substantially true account, it is also not necessary that the report should be contemporaneous the reason being that law-books and reports of decisions, etc. are not published on the same day, or, very often, soon after the delivery of judgment in Court. In view of the above only two things have to be proved by the accused, i. e. that the report is-substantially true account of the proceedings or the result of such proceedings, and (b) that the proceedings are of a Court of Justice. The Exception would apply not only to judgments and orders but also to complaints and pleadings made by the parties concerned.
8. In Balraj Khanna and Ors. v. Moti Ram AIR 1971 SC 1389, it was observed that the question as to applicability of Exceptions to Section 499 can arise only after commencement of trial and at the stage of enquiry, whether prima facie case is made out on the basis of the complaint. The question of applicability of the Exceptions to Section 439, IPC as well as all other defences that may be available have to be gone into during trial of the complaint
9. It is to be noticed that Section 202 of the Code does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage, for the person complained against can be legally called upon to answer the accusation made against him only when a process has been issued and he is put on trial. Section 203 consists of two parts the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding he shall take steps for the issue of necessary process. In a given case, where the plea based on an exception is inherent in the complaint and statement of witnesses, the Magistrate can consider them it would depend upon the nature of exception. The gamut and significance of Section 202 of the Code has bean considered in several cases by the apex Court (See Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and Anr. AIR 1960 SC 1113 Pramatha Math Talukdar V. Saroj Ranjan : AIR 1962 SC 876; and Mohinder Singh v. Gulwant Singh and Ors. ; AIR 1992 SC 1894). The scope of enquiry under the said provision is extremely restricted only to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the inquiry at that stage does not partake the character of a . full dress trial which can only take place after process it issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging guilt or otherwise of said person. During the course of inquiry under Section 202 of the Code, the Inquiring Officer has to satisfy himself simply on the evidence adduced by prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and so detailed evaluation is called for during such inquiry. In Smt. Nagawwa v. Veerar.na Shivalingappa Konjalgi and Ors.; AIR 1976 SC 1947, it was observed that the scope of inquiry under Section 202 of the Code is extremely limited to the ascertainment of truth or falsehood of the allegation made in the complaint; (a) on materials placed by the complainant before the Court, (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out, and (e) for deciding the question purely from the point view of the complainant without at all adverting to any defence that the accused may have.
10. The Magistrate is empowered to hold an inquiry of offence in order to ascertain whether there is sufficient foundation for it to issue process against the person or persons complained against When the Magistrate directs an inquiry under Section 202 of the Code for ascertaining truth or fasehood of a complaint end receives a report from the enquiring officer supporting a plea of self-defence m8de by the person complained against it is open to him to hold that the plea is correct on the basis of the report and statements of witnesses recorded by the inquiring officer. It is not obligatory on the Magistrate, as a matter of law, to issue process in such a case and leave the person complained against to establish his plea of self-defence at the trial. Section 203 makes it clear that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations, he is not bound to accept what the inquiring officer says, nor is he precluded from considering a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. It has to be borne in mind that the normal rule is that the inquiry under Section 202 of the Code is aimed at finding out prima facie basis for prosecution case, without adverting to possible defence. But if any material surfaces during the inquiry which leads to establish a foundation for an exception, the Court can consider it. That is an exceptional case. If the Magistrate has not misdirected himself as to the scope of an inquiry under Section 202 and has applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by other materials-all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions. The Magistrate has to consider only the materials before him, while deciding whether process is to be issued. The nature of Exception, its requirements have significance. it must be borne in mind that accused does not come into picture at all till process is issued. Where a prima facie case is m3de out, on the basis of materials produced before the Magistrate he is bound to commit the accused for trial, even though much can be said on both sides.
11. Vadilal's case (supra) does not lay down as a general rule that plea based on exception has to be considered in each case. The exception must be inherent from the materials under consideration by the Magistrate, because on those the Magistrate has to base his decision. The mere possibility that it may be pressed into service in future would not be sufficient In Vadilal's case (supra) the primary question was scope of interference in a casa where the plea based on an exception was considered by the Magistrate. If during inquiry materials in that regard come to fore, it is not impermissible for the Magistrate to consider it. It is not as if proposed accused has to be given opportunity to substantiate it This position has been succinctly stated in Nagawwa's case (supra).
12. Vadilal's case (supra) is not an authority for the proposition as contended by learned counsel for opposite parties that consideration of a plea based on an exception is an invariable rule That position has been amply indicated in the decision itself. The observation at para. 9 of the judgment to the effect that the scope of inquiry under Section 202 is limited to find out the truth or falsehood of the complaint in order to determine the question of issue of process is very relevant. It has been further observed in that, paragraph that the section does not say that a regular trial for adjudicating the guilt or otherwise of the parson should take place at that stage, for the person complained against can be legally called upon to answer the accusation made against him only when a process has been issued and he is put to trial. The observations at para 10 about consideration of a plea based on an exception has been made on the background that if the Magistrate has not misdirected himself on the scope of inquiry under Section 202 of the Code, and has applied his mind judicially to be material before him, it would be ' erroneous to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. ' (underlining for emphasis). ' The scope for interference in such a case was the primal question under consideration and not the scope of inquiry The aspect was dealt with in para 9, to which reference has been made by me earlier.
13. In the case at hand, conclusion of the learned Magistrate so far as first part of the news-item is concerned may be covered by Fourth Exception as it is linked with a judicial proceeding in I.C.C. No. 5 of. 1993 But there-was no material whatsoever before the learned Magistrate for the second part which the opposite parties contend, relate to another proceeding before that Court. There is no dispute that the second part did not relate to I. C. C. No. of 1993. Learned Magistrate proceeded on the basis as if the whole report related to the proceeding in I. C. C. No. 5 of 1993. The conclusion is clearly erroneous, and it is fairly accepted by the learned counsel for the opposite parties that the second part does not relate to it. From the certified copy of the first information report in G. R. Case also I find no mention about the present petitioner. A reference has been made therein about 40 to 50 people. According to learned counsel for opposite parties, petitioner was one of them. No material has been placed to substantiate this plea. In any event, there is no scope for consideration of that aspect in the present proceeding. The order passed by the learned Magistrate is clearly indefensible and is accordingly set aside. He shall re-consider the matter.
The application is allowed to the extent indicated above.