Gujarat High Court
Tapan vs State on 13 October, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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CR.MA/10239/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10239 of
2010
=========================================================
TAPAN
B JAISWAL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SR YADAV for
Applicant(s) : 1,
MR KARTIK PANDYA, ASST. PUBLIC PROSECUTOR for
Respondent(s) : 1,
Party-in-person, Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 13/10/2010
ORAL
ORDER
RULE.
Mr. Kartik Pandya, learned, APP waives service of notice of rule on behalf of respondent No.1-State and respondent No.2, who is present in person, waives formal service of rule, for himself.
1. Petitioner is the original accused. He is Editor of one newspaper, who is shown as accused No.1 in a complaint, bearing Criminal Case No. 2045 of 2009, filed before the Judicial Magistrate, First Class, Deesa, by respondent No.2 herein, alleging the offences punishable under Sections 385, 386 read with Section 120-B of the Indian Penal Code.
2. The complaint is based on a newspaper item, published in the said daily on 18.06.2009. On the premises that the said newspaper article contained defamatory and untrue statements about the complainant and his son, said complaint for defamation is lodged by respondent No.2. The news item suggested that a criminal case is registered against respondent No.2 and his son, alleging that they are involved in a criminal case of extortion and certain other allegations were also made against them.
3. It is the case of respondent No.2 that some of the details of the said newspaper article are contrary to the contents of the criminal complaint for extortion, filed against him and his son. For all such inaccuracy and misleading statements, respondent No.2 herein, filed the impugned complaint.
4. The case of the present petitioner is that the newspaper article was based on the complaint filed before the police, against respondent No.2 and his son, and there is no inaccuracy in the same.
5. Respondent No.2, appearing in person, vehemently contended that the newspaper did not publish his counter allegations of being ill-treated by the police authorities.
6. In support of his case, respondent No.2 relied on following decisions:
(1)BIBHUTI BHUSAN DAS GUPTA & ANOTER VS. STATE OF WEST BENGAL , reported in AIR(SC)(1969)381;(2)
S.B. SAHA & OTHERS VS. M.S. KOCHAR , reported in AIR(SC)(1979)1841;(3)
KISHORE KUMAR GYANCHANDANI VS. G.D. MEHROTRA , reported in SCC 10(2001)59;(4)
KISHORE KUMAR GYANCHANDANI VS. G.D. MEHROTRA & ANOTHER , reported in AIR(SC)(2002)483;(5)
RAM BABU VS. STATE OF MADHYA PRADESH & OTHERS , SCC 7 (2009) 194.
7. I have heard learned Counsel for the petitioner, learned APP for respondent No.1-State and respondent No.2, who is present in person.
8. I, however, find that, in similar circumstances, a complaint filed against another newspaper, for publication of similar news item, by respondent No.2, came to be quashed, vide order dated 23.08.2010, rendered in Criminal Miscellaneous Application No.3146 of 2010, which reads as follows:
1. Heard, learned Counsel for the petitioner, learned APP for respondent No.1-State and respondent No.2, original complainant, who is present in person, for final disposal of the petition.
2. This petition is filed by the original accused No.1, namely M/s. D.B. Corporation Limited, seeking quashing of the complaint at Annexure-A , bearing Criminal Case No.111 of 2010, dated 10.08.2009, filed before Judicial Magistrate First Class, Deesa.
3. The said complaint was filed by respondent No.2 before the learned Magistrate, alleging the offences punishable under Sections 500, 501, 502 read with Section 114 of the Indian Penal Code.
4. It appears, in the Divya Bhaskar newspaper, dated 18.06.2009, under the head of in extortion case in Deesa, father and son are sent to jail , a news item was published, suggesting that respondent No.2 and his son were involved in a criminal case of demanding extortion money and the complainant had ultimately lodged the complaint before the police, against them. It was the case of respondent No.2 that the said news item was defamatory and thereby the accused and, particularly, the petitioner committed the offences punishable under Sections 500, 501, 502 read with Section 114 of the Indian Penal Code.
5. In the complaint, respondent No.2 has alleged that the said news item, in the newspaper, carried defamatory news. The newspaper has wide circulation and publication of the news in the said newspaper has resulted into damage to the reputation of the complainant and his son. The complainant was examined by the learned Magistrate on 06.10.2009, thereafter, the learned Magistrate, on 13.01.2010, was pleased to issue process under Sections 500, 501, 502 read with Section 114 of the Indian Penal Code.
6. The learned Counsel for the petitioner stated that the narration in the news item was exactly as the allegations made in the complaint itself. The complaint is lodged against present respondent No.2 before the Deesa Police Station. The news item only reproduced the contents of the complaint and the same would, therefore, not amount to defamation.
She relied on a decision of the learned Single Judge of this Court in (Shri) Chimanbhai Somabhai Patel & Others Vs. Mithu Bava & Another reported in 1984 GLH (U.J.) 107, wherein it was observed that publication of a news item, without twisting the same, to highlight circumstances which might not be true, may amount to defamation. But, publication of an item of news, without twisting the same or without an ulterior motive, can never amount to defamation. A person, who is arrested in connection with the smuggling of silver would be well-advised, not to take his reputation to be so high that it can be dented by such a news item, being published in the newspaper.
7. The respondent No.2, appearing in person, vehemently contended that news of his son being arrested, were false. Moreover, the newspaper did not publish the counter allegations of respondent No.2 of being ill-treated by the police authorities. He had also given prior notice before lodging the complaint. He, therefore, prayed that no case is made out for quashing.
In support of his submissions, he relied on following decisions:
(1) In the case of Ram Babu Vs. State of Madhya Pradesh & Others reported in (2009)7 SCC 194, in which the Apex Court stressed on the need for a reasoned order, while quashing the complaint and the summons issued by the Court.
(2) In Bibhuti Bhusan Das Gupta and Another Vs. State of West Bengal reported in AIR 1969 381, in which the Apex Court observed that even when the personal appearance of the accused is dispensed with, examination of pleader in his absence, is not sufficient compliance, except, where the accused is a company or the juridical person.
I do not see how the said decision would apply in the present case.
(3) In the case of Kishor Kumar Gyanchandani Vs. G.D. Mehrotra & Another reported in AIR 2002 SC 483, in which the Apex Court observed that the power of the Magistrate, under Section 202 of the Criminal Procedure Code, is not lost merely because he accepted the final form submitted by the police, investigating the incident in question, on the basis of an FIR.
This question is not germane in the present proceedings.
8. Considering the submission made and perusing the documents on record, it appears that the news item, dated 18.06.2009, published by the petitioner is substantially, if not entirely, based on a complaint dated 16.06.2009. In that view of the matter, question is whether the offence of 'defamation' would be made out. The term 'defamation' is defined under Section 499 of the Indian Penal Code, as under:
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 expected, to defame that person.
9. There are explanations and exceptions to the said provision, particularly, the fourth exception, reads as under:
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 loathsome state, or in state generally considered as disgraceful.
10. In the present case, when I find that newspaper report is substantially based on a complaint, lodged against respondent No.2, the newspaper cannot be blamed for carrying any defamatory items. It is not as if the news paper reported an incident allegedly taken place. Newspaper only published news of filing of a complaint against respondent No.2 and his son and narrated the allegations made, therein. This was also the view expressed by the learned Single Judge of this Court in the case of (Shri) Chimanbhai Somabhai Patel & Others (Supra).
11. Allegation that the newspaper published a false report of the son of respondent No.2 being arrested has to be examined on the basis of the impugned complaint. It is the part of the complaint that such news were false and defamatory. This averment of respondent No.2, therefore, cannot be accepted.
12. In the result, I find that the complaint does not disclose the offences punishable under Sections 500, 501, 502 read with Section 114 of the Indian Penal Code. Same is, therefore, QUASHED qua the present PETITIONER, alone.
Petition is disposed of, accordingly.
9. From the above, it is clear that the accusations are similar, though, some minor differences of statements made in the newspaper publication. The accusations against the present petitioner are also similar. I see no inaccuracy in the statements in the newspaper publication. They are based, entirely, on the complaint, which is lodged before the police station, against respondent No.2 and his son. No allegations are made out disclosing the offence of defamation. No case for defamation is, therefore, made out.
10. In the result, Criminal Case No. 2045 of 2009, filed before the Judicial Magistrate, First Class, Deesa, is QUASHED qua the present PETITIONER, alone. Rule is made absolute to the aforesaid extent.
(AKIL KURESHI, J.) Umesh/ Top