Calcutta High Court
Zee Telefilms Limited vs M/S. Sahara India Commercial ... on 9 November, 2000
Equivalent citations: (2001)1CALLT262(HC)
ORDER S. Barman Ray, J.
1. By this application under section 482 of the Code of Criminal Procedure, petitioner has prayed for quashing the cognizance taken and the process issued upon it by the learned Metropolitan Magistrate 15th Court under section 500/34 IPC in complaint case No. 3859/1998.
2. The case in brief is that the petitioner Zee telefilms Limited is a company Incorporated under the provisions of the Companies Act, 1956. The Company is engaged in the business of production and procurement of films, tele-serials programmes in news and current affairs etc. and telecast the same in various channels of Zee net-work, namely. Zee TV, Zee news and Zee cinema, all owned and managed by the Asia Today Limited, a company incorporated in Mauritius. Petitioner Company entered into a contractual agreement with the said Asia Today Limited to supply it with various programmes to telecast the same on the said channels.
3. Further case of the petitioner is that management of the petitioner Company is carried on by the Board of Directors of the Petitioner Company. On or about May, 31, 1999 Petitioner Company was served with summons issued by the said Court in connection with complaint case No. 3859/98 under section 500/34 IPC Said complaint case was instituted against the petitioner and others on the basis of a complaint lodged by O.P. No.l M/s. Sahara India Commercial Corporation Limited, a Public Limited Company and Opposite Party No.2 Ashim Bhowmick being a Manager (Finance) of Opposite Party No.l. On the basis of the complaint learned Magistrate took cognizance of the offence under section 500/34 IPC and issued summons upon the petitioner company and others. It has been, inter alia, alleged in the said complaint that a verification campaign of libel/slander has been unleashed by the petitioner company and others against the complainant As a part of the said slanderous campaign a programme called "verdict-98" was telecast on 13.10.98 and 14.10.98 oh Zee India Television Channel. By telecasting the said "Verdict-98" programme based on "utter falsehood, half-truth, suppression of truth and mis-representation," complainant group of the companies was defamed "in every possible way". Further details of facts' are not necessary for disposal of this application.
4. Being aggrieved by and dissatisfied with the said process/summons served upon the petitioner company, this application was filed to quash the case so far as it relates the petitioner Company.
5. I have heard Mr. P.K. Ghosh learned counsel for the petitioner and Mr S. Ghosh learned Counsel for the Opposite Parties.
6. Mr. P.K. Ghosh contended that petitioner Company being a Juristic entity, it is incapable of committing of any offence of which mens rea is one of the essential ingredients. Offence of defamation as defined in section 499 IPC is one such offence and mens rea is its essence and hence petitioner Company being a Juristic entity is incapable of committing such offence. He, therefore, contended the summon issued upon the petitioner company must be quashed.
7. On the otherhand Mr. S. Ghosh learned counsel for the O.Ps. contended that even a Company or an Association of person can be prosecuted for offences of which mens rea is an essential ingredient of the offences alleged. In support of his contention Mr. S. Ghosh cited number of case laws.
8. Offence of defamation is defined in section 499 IPC. It is apparent from the very definition that intention of the accused who make such imputation must be to harm the reputation or he must make it with knowledge or reasonable belief with such imputation will harm the reputation of the person concerned. Therefore, unless one makes the offending Imputation with such state of mind, he cannot be said to have committed such offences. Undoubtedly a company is a Juristic entity. The offence of defamation consists of three essential ingredients, namely, (i) making or publishing any imputation concerning any person, (ii) such imputation must have been made by words either spoken or intended to be read or by signs or by visible representation, and (iii) the said imputation must have been made with intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned. Therefore, it is apparent from the very definition of the offence as given in section 499 IPC that intention to cause harm is the most essential sine qua non of an offence under section 499 IPC. Question is whether a Juristic or artificial entity is capable of having such a state of mind? According to a decision of this Court in Sunilakhya Chowdhury v. H.M.J.H. Jadwet , a Juristic person and artificial person or a Juristic entity is incapable of having any mind and hence question of having such a state of mind cannot arise. It was, therefore, concluded such a person cannot commit an offence of defamation of which mens rea is one of the essential ingredients though the directors and other officers of such company may be liable for committing such offences in certain circumstances. This Court in an earlier case in Anath bandhu v. Corporation of Calcutta also held that a limited company cannot be prosecuted for an offence of which mens rea is an essential ingredient. It may be possible to prosecute a company for an offence which does not require mens rea or particular state of mind to be one of the essential ingredients of the offence. But, If the statute requires that mens rea is an essential ingredient of the offence, then a company cannot be prosecuted for such an offence as such company is incapable of having a mind or intention or mens rea. Learned counsel for the petitioners cited a decision of the apex Court fn Kalpanath Rai v. State [through CBI), wherein it was held in paragraph 57 of the report that a company is not a natural person. Mens rea being an essential ingredient of offence under section 3(4) there is no question of prosecuting it for the same. In many recent penal statutes, companies or corporations are deemed to be offenders on the strength of the acts committed by person responsible for the management of the affairs of such company or corporation. But, there is no such provision in the Tada which makes the company liable for the acts of its officers. Hence, there is no scope whatsoever to prosecute a company for the offence under section 3(4) of Tada.
9. In the penal code also there is no provision which makes a company or an association of persons liable for prosecution for the offences of which mens rea is one of the essential ingredients. In this situation and in view of the aforesaid decision of the apex Court, it is apparent that if a statute defining the offence makes the mens rea or particular state of mind to be essential ingredients of such offence, a company or an association of person cannot be prosecuted for such offences though its officers or directors responsible for the management of the affairs of such company may be liable for prosecution. Similar view was expressed by this Court in an earlier decision in AIR 1949 CAL 689 where it has been held that bank is a Juridical person and not an actual person. The bank is such that it cannot be said to have the mens rea required for the offence of cheating. The bank as such cannot be punished for cheating because it has no physical body. Similar view was reiterated in a recent decision of this Court in a comparatively recent decision of this Court in AK. Khosla v. T.S. Venkatesan. 1991 (2) CRN 321.
10. On the otherhand Mr. S. Ghosh learned counsel for the Opposite Party relied upon a large number of case laws to buttress his contention that even if mens rea is one of the ingredients of the alleged offences, a company or a body corporate can be legally prosecuted and there is no bar against it under the law. To buttress his aforesaid contention he cited the decision of the apex Court in M.V. Javati v. Mahajan Borewell, . That is a case under the provisions of the Income Tax Act. In view of the requirements of the offence under the provisions of the said Act, it appears to me that mens rea is not one of the essential ingredients of such an offence and, therefore, there is no bar to prosecute the company in question. This is not the case in so far as the offence of defamation is concerned of which particular mental state of mind is the sine qua non of the offence. Therefore, the case law cited in this regard has no manner of application to the facts of the present case. Section 278B(1) of Income Tax Act clearly provides that where an offence under that Act is committed by a company, every person who, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceed against and punished accordingly. Therefore, by this provision statute expressly provided that a company can be prosecuted for committing offences under the Income Tax Act. This decision cannot have any application in the present case as under the penal code, there is no such similar provision that a company is also liable to be prosecuted even when statutes creating such offence of defamation clearly lays down that mens rea is one of the essential ingredient. Statute also does not provide that in such a situation company or an association of persons is also liable to be prosecuted. In these circumstances, I have no hesitation to hold that this decision cited on behalf of the Opposite Parties has no manner of application in this case. Learned counsel for the O.P. also cited a decision of the Privy Council in (1904)7 All ER 925. 1 do not like to go into detail discussion about this decision of the Privy Council inasmuch as the apex Court of the land already referred to above has clearly laid down that a company or a corporate body cannot be prosecuted for an offence of which mens rea is an essential ingredient.
11. Mr. S. Ghosh learned counsel for the O.Ps. also relied upon a decision of the apex Court in the State of Madras v. C.V. Parak, . it is the case for offences under the Essential Commodities Act. After going though this judgment of the apex Court, I find that this case has nothing to do with prosecution of a company or association of persons in respect of an offence where mens rea is an essential ingredient.
12. The other decision of the apex Court in Arjun Prashad v. Shantilal, cited on behalf of the O.ps. has been unnecessarily cited on their behalf as this case has absolutely nothing to do with criminal prosecution. Therefore, this case has also been unnecessarily cited on behalf of the Opposite Parties. Mr. S. Ghosh learned counsel for the O.Ps. cited many other decisions of various High Courts. I do not like to enter into any further discussion about these case laws in view of the fact that after the decision of the apex Court in Kalpanath Ral's case, I do not think that the other decisions of various High Courts can have any application in the present case. Therefore, they do not merit any further reference in this order.
13. Of course two further decisions of the apex Court were cited on behalf of the Opposite Parties as to under what circumstances a criminal prosecution can be quashed or process issued at the initial stage can be interferred with in exercise of inherent power of this Court under section 482 Cr. PC. In these circumstances of the case so far as the petitioner company is concerned I have absolutely no hesitation in my mind that if the company was incapable of committing an offence of which mens rea or a particular state of mind or intention is the essential ingredient of such offence, the process issued against the petitioner must be quashed though the case instituted against others may be maintainable and proceeded with in respect of which I am not called upon to express any opinion.
In the result, 1 allow this application and quash the process/summons which was issued by the learned Magistrate against the petitioner company.
14. Appeal allowed