Calcutta High Court
Aveek Sarkar And Ors. vs State Of West Bengal And Anr. on 9 September, 2004
Equivalent citations: 2005(2)CHN694
JUDGMENT P.N. Sinha, J.
1. This revisional application has been preferred by the petitioners praying for quashing the complaint case bearing No. C-107 of 1994 under Sections 500/501/502/ 34 of the Indian Penal Code (in short IPC) now pending in the Court of the learned Metropolitan Magistrate, 5th Court, Calcutta and the order dated 24.5.94 passed by the said learned Magistrate thereby keeping the application under Section 205 of Cr. PC filed by the petitioners pending till their appearance personally before the Court.
2. In spite of service of notice the opposite party No. 2, i.e. the de facto complainant did not appear and accordingly the Court heard the petitioners only.
3. Learned Advocate for the petitioners contended that petitioner No. 1 is the Editor of leading Bengali newspaper "Anandabazar Patrika", petitioner No. 2 is the publisher-cum-printer and petitioner No. 3 is a journalist employed by the Anandabazar Patrika. On or about March 25, 1994 an announcement/advertisement was published in the said patrika regarding publication of series of articles on Netaji Subhas Chandra Bose and in pursuant to that certain articles were published regarding life of Netaji Subhas Chandra Bose in the said newspaper on March 29 and March 30, 1994. The said articles dealt with Netaji Subhas Chandra Bose's relationship with one Emillie Schenkl. Among the two articles one was written by granddaughter of Netaji based on a book written by Emillie Schenkl, the wife of Netaji Subhas Chandra Bose and the other was the comments regarding burning of newspaper which contained the article published on March 27, 1994. The said articles were published after taking reasonable steps and ascertaining veracity of the facts contained therein. As the said articles were concerning matter of public interest and comments were based on facts believed to be truly stated the words used in the said articles in so far as they consist of expression of opinion were fair comments. On or about 5th April, 1994, the de facto complainant filed a complaint in the Court of the learned Additional Chief Metropolitan Magistrate alleging that being Ex-Mayor and Ex- M.P. and one of the greatest admirers of Netaji Subhas Chandra Bose, he was hurt regarding the news item published in Anandabazar Patrika on March 27 and March 29,1994 where the character of Netaji was assassinated and image of Netaji Subhas Chandra Bose was brought down in the estimation of countrymen. It was further alleged in the complaint that due to the result of such publication the reputation of national hero Netaji had been belittled in the eyes of his admirers and followers and the said articles contain scandalous advertisement news and by publishing such news item the petitioners have committed offence under Sections 500/501/502/34 of IPC.
4. He further contended that the learned Magistrate took cognizance on the basis of such complaint and issued process and the petitioners filed an application under Section 205 of Cr. PC but, the learned Magistrate did not allow their prayer and kept the petition pending till they appear personally before the learned Magistrate. The order of the learned Magistrate refusing to dispose of the application under Section 205 of Cr. PC was bad in law. Continuance of the proceeding is an abuse of the process of the Court inasmuch as Section 199 of Cr. PC defines who can initiate proceeding in a case under Section 500 of IPC. The O.P. No. 2 is not at all a person aggrieved due to publication of such news item. Nowhere in the complaint it was disclosed how he was personally aggrieved by such publication and accordingly the whole proceeding being bad in law is liable to be quashed.
5. He also contended that the article written by Smt. Krishna Basu, are excerpts of a book written by Smt. Emillie Schenkl which was published in the Anandabazar on 25.4.94 and accordingly question of petitioners committing any offence does not arise. The news item which was published did not make out a case of defamation and in the complaint there was no whisper as to how the complainant was defamed by publication of such news item. The learned Magistrate issued process without applying proper judicial mind in the instant matter and continuation of the criminal proceeding is an abuse of the process of Court and it requires to be quashed. The news item was not published with any malice and it was a case of fair reporting. He contended that members of a clan or followers are not at all aggrieved persons. In support of his contentions he cited the decisions reported in AIR 1970 Cal 216, Dhirendra Nath Sen v. Rajat Kanti Bhadra; AIR 1972 SC 2609, G. Narasimhan v. T.V. Chokkappa; 1988 Cr. LJ 487, Nazeem Bavakunju v. State of Kerala; 1980 Cri. L. J. 1036, Ganesh Nand Chela v. Swami Divyanand; 1984 Cr. LJ 1121, Aruna Asaf Ali v. Purna Narayan Sinha and 1995 Cr. LJ 277, Vishwa Nath v. Shambhu Nath Pandeya.
6. From the materials on record it is evident that the petitioners preferred the instant revisional application when in the Court of the learned Metropolitan Magistrate, 5th Court, Calcutta they submitted a prayer to allow them to be represented under Section 205 of Cr. PC after receiving summons but, the learned Magistrate kept the petition pending with the record and indicated that the petition under Section 205 of Cr. PC cannot be considered until the accused petitioners personally appear before the Court. Thereafter, the petitioners moved this Court praying for quashing the criminal proceeding being complaint case No. C-107 of 1994 which was started on the basis of complaint lodged by opposite party No. 2 as complainant.
7. The copy of the complaint filed by the opposite party No. 2 in the Court of the learned Additional Chief Metropolitan Magistrate, Calcutta which was sent to the learned Metropolitan Magistrate, 5th Court for disposal is annexure B. It appears that in the complaint, the complainant alleged that he is one of the greatest admirers of Netaji Subhas Chandra Bose, the great patriot and according to complainant Netaji Subhas Chandra Bose was as great to India as Lenin was to Soviet Union, Abraham Lincon to U.S.A., Aristotle to Greek, Napolean to France and Che Gua Vara to Chile. Netaji was under the estimation of the complainant was a legendary hero of the Indian struggle for sometime. But the news item published in the Anandabazar Patrika on 27.3.94 and 29.3.94 were scandalous and the said news item flouted all norms of journalism and it was published with intention to lower down the image of Netaji Subhas Chandra Bose in the estimation of his countrymen, followers and admirers. By such publication Netaji Subhas Chandra Bose has been shown as an ordinary man of low lewd taste having intense love for a foreign lady and his proclaimed love for the nation is secondary to his love for a foreign lady. According to estimation of complainant, the news items which were published in the Anandabazar Patrika was published with mala fide intention to assassinate the character of Netaji and lower him in the estimation of his posterity, countrymen, admirers and followers. Such planned scandalisation of Netaji has hurted the sentiments of all the countrymen including the complainant as character of Netaji as a man is by far more superior and emulative than the one vulgarly depicted in the said advertisement and the news item. The contents of the letters published on 27.3.94 are vertically at variance with the contents and spirit of the advertisement and the news item dipped deep into the drain of vulgarity hence untrue and unfounded and was intended smartly to lower down Netaji in the estimation of his admirers, lovers, believers and followers. Accordingly, the complainant lodged the complaint as in his opinion the publication of the news item was scandalous and defamatory. On the basis of the complaint learned Metropolitan Magistrate, 5th Court, Calcutta issued process against the accused persons under Sections 500/501/502/34 of IPC.
8. It is undoubtedly true that Netaji Subhas Chandra Bose is a legendary hero and one of the greatest freedom fighters of India. His quality as one of the greatest freedom fighters of India, his contribution to the country for achieving independence from the British Rule and his sacrifice for the freedom of India and his fight against British Rule is unquestionable and has taken place in the pages of Indian History for freedom movement of India. Though he was one of the greatest freedom fighters for India he was basically a human and within a human there remains some common characteristics and features. However, a great leader the Netaji Subhas Chandra Bose may be, he was not above the common human characteristics and features like love, anger, emotion, sentiment, sacrifice, compassion, attachment, affection, forbearance, discipline, devotion for duty, responsibility etc. Napolean, one of the greatest leaders of France also fell in love with a lady who was older in age than Napolean whom he married ultimately. Therefore, if after leaving India in disguise through North Western provinces via Kabul and during his efforts for the Indian struggle for freedom from outside he came across with a lady whom he loved and married ultimately there cannot be any character assassination of Netaji Subhas Chandra Bose. The letters published on 27th March, 1994 were reproduced from the Netaji : Collected Works. Volume 7 - letters to Emillie Schenkl (1934-1942) by Netaji Subhas Chandra Bose and the said article was written by Smt. Krishna Basu, a granddaughter of Netaji Subhas Chandra Bose. By this time we all know that Netaji Subhas Chandra Bose was married and he married foreign lady namely Emillie Schenkl and a daughter was also born to them known as Anita and the said daughter also visited India. Undoubtedly, Netaji Subhas Chandra Bose is admired by all the Indians as one of the greatest freedom fighters of the India but being a human he was not above all the human instincts and characteristics and if during his exile in foreign countries he came across with a lady and from whom he got inspiration and if he married the lady and if that news is published in any newspaper, it does not amount to publication of news item with malice or to assassinate the character of Netaji and to lower down the high reputation, fame and prestige of Netaji in the eyes of his admirers, followers and crores of Indian countrymen.
9. It is transparently clear that the article written by Smt. Krishna Basu are excerpts of a book written by Smt Emillie Schenkl and the said lady were in possession of those letters written by Netaji Subhas Chandra Bose himself. It is evident that the petitioners took care and caution and after taking a reasonable steps to ascertain the veracity of the facts contained therein the said news item containing letters written by Netaji to Smt. Emillie Schenkl were published. The subject-matter in the said article was a matter of public interest and the comments made therein were based on facts believed to be truly stated. The said news item even in entirety do not make out a case of defamation. Moreover, the petition of complaint does not disclose how the complainant opposite party No. 2 was defamed by the publication of the news concerning Netaji Subhas Chandra Bose.
10. Mr. Bagchi for the petitioners rightly contended that the complainant is not at all an aggrieved person and he had no locus standi to file the complaint. In this connection the decisions cited by him are quite apposite. In Dhirendra Nath Sen (supra) this Court clearly observed that, "If a person complains that he has been defamed as a member of a class he must satisfy the Court that the imputation against him personally and he is the person aimed at, before he can maintain a prosecution for defamation. In short, the grievance of the complainant should not merely be the one shared by every member of an organised society. Where, therefore, the Editor of a paper writes an editorial which is highly defamatory of the spiritual head of a certain community, and individual of that community is not an aggrieved person within the meaning of Section 198 Cr. PC. The mere fact that the feelings of the complainant have been injured in consequence of a defamatory statement made against his religious head, affords him no ground under the law to prosecute the accused for defamation."
11. In G. Narasimhan (supra) the Supreme Court made it clear by observing that, "Section 198 lays down an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved person or not, and modifies that rule by permitting only an aggrieved person to move a Magistrate in cases of defamation. The section is mandatory, so that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction would be void and illegal."
12. In Nazeem Bavakunju (supra) it was held by the Kerala High Court that, 'There may be cases where the wife also would be really aggrieved when the imputation is of such a nature that it has got some direct connection attaching the reputation of the wife. Section 199 restricts the powers of the Court in taking cognizance of offence except upon a complaint filed by some aggrieved person." In that decision it was held that the matter of publication was relating to husband's laches in official work but wife was not the aggrieved person and complaint was not maintainable. In that decision it was also held that, "In case of alleged defamation if the contents of the news item published in the newspaper are slightly exaggerated it does mot make the comment unfair so long as what is expressed therein is materially true and for public benefit. The doctrine of fair comment is based on the hypothesis that the publication in question is one which broadly speaking, is true in fact and is not made to satisfy a personal vendetta and that the facts stated therein would go to serve the public interest. The publisher of the newspaper are entitled to make fair comments. Mere exaggeration or even gross exaggeration would not by itself prove malice." In the instant case the letters written by Netaji Subhas Chandra Bose were quoted from the book as stated above written by Smt. Emillie Schenkl and it was published in the "Anandabazar Patrika" after its editors and printers ascertained the veracity of the facts contained therein and the writer of the news item was none but one of the granddaughters of Netaji Subhas Chandra Bose. Accordingly, in the instant case there was no question of publication of the news item dated 27.3.94 with malice.
13. In Ganesh Nand Chela (supra) Delhi High Court observed that a complaint by a disciple made under Section 500 of Cr. PC is not maintainable as the disciple cannot be regarded as aggrieved person. In Vishwa Nath (supra) the Allahabad High Court also observed that only the person who is aggrieved can lodge the complaint for defamation. In the said case a publication was made in alleged article containing imputations against a community in general and not against any particular group of the said community. The community was not found to be identifiable, definite and determinate in relation to the alleged imputation. There was no allegation of any personal injury caused to the complainant due to the publication of the article. It was held that the complainant was not the aggrieved person and complaint was not tenable.
14. In Aruna Asaf Ali (supra) the Guahati High Court also opined in same tune by observing that defamation against unidentifiable body of persons made by the complainant who claimed himself to belong to that group was not maintainable. It was held that the complainant was not an aggrieved person with regard to the publication made in the aforesaid two articles and accordingly it was held that complaint was not maintainable.
15. In the instant case it was not made clear as to how the complainant was aggrieved with the news item published in the "Anandabazar Patrika" on 27.3.94 and 29.3.94. The news item published was not at all touching his fame and reputation. Not only that, it transpired that the news item published in the newspaper was based on some letters written by a lady who was the wife of Netaji Subhas Chandra Bose and the writer of the article which was published in the newspaper was herself a granddaughter of Netaji Subhas Chandra Bose. The comments made in the news item were fair comments and naturally the said news item and comments did not attract elements of defamation. Moreover, nowhere in the complaint it was ever disclosed how the complainant was aggrieved due to publication of the news item. The complainant was not at all an aggrieved person in the instant matter relating to the news item published in the "Anandabazar Patrika" on 27.3.94 and 29.3.94.
16. The above discussion makes it clear that continuation of the criminal proceeding in the Court of the learned Metropolitan Magistrate, 5th Court, Calcutta would be an abuse of process of the Court and accordingly this Court exercising powers vested in it under Section 482 of Cr. PC can quash the said criminal proceedings when the complaint itself on the face of it did not disclose elements of offence under Sections 500/501/502/34 of IPC and the complainant himself was not an aggrieved person in the eye of law to lodge the complaint. The impugned criminal proceeding being complaint case No. C-107 of 1994 now pending in the Court of the learned Metropolitan Magistrate, 5th Court, Calcutta is hereby quashed.
17. The revisional application is accordingly allowed and disposed of in the light of the observations made above.
18. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.