Delhi High Court
Mahadev I Todale vs Frankfinn Aviation Services Pvt Ltd & ... on 10 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th July, 2017.
+ CM(M) 687/2017
MAHADEV I TODALE ..... Petitioner
Through: Mr. Manohar Pratap, Ms. Aastha
Vashistha & Mr. Peeyush Bhatia,
Advs.
Versus
FRANKFINN AVIATION SERVICES
PVT LTD & ORS ..... Respondents
Through: Ms. Meenakshi Midha & Mr. Kapil
Midha, Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM Nos.23671-72/2017 (both for exemptions)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
CM(M) 687/2017 & CM No.23670/2017 (for stay)
3. This petition under Article 227 of the Constitution of India impugns
the order dated 4th March, 2017 of the Additional District Judge (ADJ) of
dismissal of the application filed by the petitioner / defendant for deletion of
his name as defendant in a suit filed by the respondent no.1 / plaintiff for
recovery of damages for defamation.
4. The counsel for the respondent no.1 / plaintiff appears on advance
notice and considering the nature of the controversy, the counsels have been
heard at length.
CM(M) 687/2017 Page 1 of 20
5. The respondent no.1 / plaintiff Frankffin Aviation Services Pvt. Ltd. is
carrying on business of imparting education in vocational training in the field
of aviation industry.
6. The respondents no.6 and 7 viz. Rahul Haresh Bhatia and Haresh
Bhatia, residents of Pune, approached the Police with a complaint of the
respondent no.1 / plaintiff having cheated the respondents no.6 and 7 as well
as other students by misrepresenting that the respondent no.1 / plaintiff was
entitled to impart education and confer a qualification when in fact the
respondent no.1 / plaintiff was not entitled to. An FIR was registered against
the respondent No.1/plaintiff and its officials.
7. The petitioner herein, an Assistant Police Inspector in Maharashtra
Police was the Investigation Officer (IO) of the said FIR. On enquiry, I am
told that though charges were framed by the concerned Court at Pune in the
said FIR but the Sessions Court, Pune in a revision petition preferred by one
of the accused persons has set aside the order framing charge and directed
the Court concerned to re-hear on framing of charge.
8. The respondent no.1 / plaintiff instituted the suit from which this
petition arises, in this Court (and which has since, on change of pecuniary
jurisdiction, been transferred to the District Court) and not in the Courts at
Pune, for recovery of damages for defamation qua certain news articles
published in the newspapers Times of India, Mumbai Mirror, Pune Mirror
and Bangalore Mirror of the respondents no.2 to 5 viz. Bennett Coleman &
Co. Ltd., Nidheesh Tyagi, Meenal Baghel and K.R. Srinivasan herein. In the
said suit, besides the respondents no.6 and 7, at whose instance the FIR
against the respondent no.1 / plaintiff and its officials had been registered,
CM(M) 687/2017 Page 2 of 20
the petitioner who was the IO and Ms. Sona Pardasani, Advocate, Pune who
was the counsel for the respondents no.6 and 7, were also impleaded.
9. The respondent no.1 / plaintiff has since withdrawn the suit insofar as
against the publishers of Times of India, Mumbai Mirror, Pune Mirror and
Bangalore Mirror as well as against the counsel Sona Pardasani and the suit
now remains only against the complainants and the petitioner herein who
was the IO.
10. The petitioner though at the relevant time the IO of the said FIR, has
since been transferred to the Bomb Detection and Disposal Squad (BDDS),
Police Commissionerate, Pune, Maharashtra.
11. The petitioner applied to the suit Court for deletion of his name and
which application has been dismissed by the learned ADJ in view of the
averments in the plaint filed by the respondent no.1 / plaintiff against the
petitioner/defendant.
12. I have at the outset enquired from the counsel for the respondent no.1 /
plaintiff as to how the respondent no.1 / plaintiff can maintain a suit for
damages for defamation qua what has transpired during the investigation of
the FIR and in Court in pursuance thereto, when the outcome of the
prosecution is not known as yet.
13. This Court in Shri Ram Singh Batra Vs. Smt. Sharan Premi 133
(2006) DLT 126 also was concerned with a suit for recovery of damages for
defamation by publication in the newspapers of the FIR registered against
the plaintiff therein and arrest of the plaintiff therein. It was pleaded that the
complaint on the basis of which FIR was registered was false. It was found
CM(M) 687/2017 Page 3 of 20
that the process of criminal law was still on and the plaintiff had not been
acquitted or discharged. It was held (i) that malicious prosecution is
actionable as a tort but mere presentation of a false complaint which first
seeks to set the criminal law in motion will not furnish an action for damages
for malicious prosecution; (ii) that till the plaintiff obtains an order of
acquittal or discharge in his favour, no cause of action to file a suit against
the defendant on the tort of malicious prosecution accrues; (iii) that the
newspaper reports of registration of FIR against the plaintiff and disclosing
the nature of offence alleged of the plaintiff and of arrest of the plaintiff are
also not actionable; (iv) that till it is established that the FIR in question is
based on a false allegation, no action is found maintainable on the newspaper
reports; (v) that till the investigation is on, there can be no cause of action.
Accordingly, the plaint in the suit was rejected.
14. This Court, again in Vijay Gulati Vs. Radhika (2010) 119 DRJ 482
was concerned with the maintainability of a suit for damages for defamatory
statements made in complaints made to the police and wide spread and open
circulation thereof. It was held (a) that till the time the charges levelled
against the plaintiff are not disproved or not proved, it could not be said that
the allegations in the complaint were without any merit; (b) that the
allegations in the complaint could not be said to be defamatory; (c) that a suit
for damages for defamation cannot be initiated as a surrogate litigation as a
counter-blast and to use it as a lever to tame the defendant; (d) that the
defendant/complainant cannot be put on a defensive by initiation of such a
suit for damages for defamation; (e) that the suit for damages for defamation
cannot be used as a lever to get the dragnet by criminal cases; (f) reliance
CM(M) 687/2017 Page 4 of 20
was placed on Bira Garari Vs. Dulhin Somaria AIR 1962 Patna 229 (DB)
laying down that in a case of defamation on the basis of registration of a
cognizable offence, it could not be said that the person had been defamed
unless and until the said complaint is tested before the appropriate forum; (g)
once a person puts criminal law into action, the other party cannot lodge and
bring about a suit for defamation so as to stop those criminal proceedings;
(h) that the appropriate remedy for such a plaintiff would be either to
institute a suit for damages for malicious prosecution or to get a case
registered under Section 182 Cr.P.C.; (i) that the suit for damages for
defamation is pre-mature till the complaint is rejected. Accordingly, the suit
held not maintainable and the plaint was rejected.
15. I also had an occasion in Primero Skill & Training Pvt. Ltd. Vs.
Selima Publications Pvt. Ltd. 2017 SCC OnLine Delhi 7619 to consider the
maintainability of a suit inter alia for damages for defamation by publication
in the newspaper of the FIR lodged against the plaintiff and the proceeding
thereon in the Court. There also, though the FIR against the plaintiff was of
Hailakandi, Assam and all the defendants were also situated in Assam, the
suit was instituted in this Court. Though without noticing the aforesaid two
judgments, I observed and held:
"8. It was further put to the counsel for the plaintiff, whether
not the action of the plaintiff of, despite carrying on business in
Assam where all the defendants are situated and where the
newspaper in local dialect containing allegedly defamatory
article was published, filing this suit far away in this Court was
nothing but an attempt on the part of the plaintiff to shut up and
stifle the defendants and to coerce the defendant no.7 to
withdraw her complaint and to not pursue / support the FIR. It
was further put to the counsel that the plaintiff could have very
CM(M) 687/2017 Page 5 of 20
well taken the action, if genuinely aggrieved, locally and why
should the attempt of the plaintiff to drag the defendants to this
Court and which the defendants may be unable to do as they do
not appear to be persons of much means, be not nipped in bud.
Attention of the counsel was also invited to M/s. Kusum Ingots
& Alloys Ltd. Vs. Union of India (2004) 6 SCC 254 and
Sterling Agro Industries Ltd. Vs. Union of India AIR 2011 Del
174 incorporating principle of forum convenience in domestic
civil law.
9. The counsel for the plaintiff argued that if the plaintiff
was entitled to invoke the territorial jurisdiction of this Court, it
could not be compelled to invoke the territorial jurisdiction of
another Court which may be more convenient to the defendants.
However the main emphasis of the counsel for the plaintiff, with
reference to the terms of PMKVY and other documents
concerning therewith filed by the plaintiff, was that PMKVY
itself provides for the procedure of crediting the account of the
trainee with Rs.5,000/- and automatically debiting a sum of
Rs.4,500/- therefrom and crediting the same to the account of
the plaintiff as a training partner and thus the allegations of the
defendants published in the impugned article are false and
defamatory of the plaintiff.
10. The aforesaid argument of the counsel for the plaintiff
misses the charge which the defendant no.7 has levied against
the plaintiff and which is the subject matter of legal proceedings
initiated against the plaintiff in Assam. The case of the
defendant no.7 is that the plaintiff lures the labourers to the
training scheme with the promise of their account being
credited with Rs.5,000/- and without disclosing that Rs.4,500/-
would be automatically debited therefrom.
11. It was further put to the counsel for the plaintiff, whether
not complaints to the Police Authorities enjoy absolute privilege
and there can be no defamatory action with respect thereto and
whether not the remedy in such a case is of action of malicious
prosecution only.
CM(M) 687/2017 Page 6 of 20
12. No reply in this respect was forthcoming from the counsel
for the plaintiff nor has anything in this respect been stated in
the written arguments filed by the plaintiff and taken on record;
rather the said written arguments are a re-production of the
contents of the plaint save reliance towards the end being
placed on (i) Reliance Petrochemicals Ltd. Vs. Proprietors of
Indian Express Newspapers, Bombay Pvt. Ltd. (1988) 4 SCC
592; (ii) Sahara India Real Estate Corporation Limited Vs.
Securities and Exchange Board of India (2012) 10 SCC 603;
and (iii) judgment dated 16th January, 2014 in CS(OS)
No.102/2014 titled Swatanter Kumar Vs. The Indian Express
Ltd. and copies whereof are annexed to the written arguments.
13. Having given further thought to the matter, I remain of
the same view as on the day when the suit had come up for
admission, that this suit does not deserve to be entertained and
deserves to be thrown out at the threshold to save the
defendants, who do not appear to be persons with much
monetary means, from travelling to Delhi, engaging an
Advocate, appearing and contesting this suit at Delhi.
14. My reasons therefor are as under:-
(a) Supreme Court, in Youth Bar Association of India
Vs. Union of India (2016) 9 SCC 473, concerned with a
petition under Article 32 of the Constitution of India and
while issuing guidelines/directions for supply of copy of
FIR has inter alia directed that the copies of the FIR
(unless the offence is sensitive in nature, like sexual
offences, offences pertaining to insurgency, terrorism and
of that category, offences under Protection of Children
from Sexual Offences (POCSO) Act, 2012 and such other
offences) should, within twenty-four hours of the
registration of the FIR, be uploaded on the police
website, and if there is no such website on the official
website of the State Government so that the accused or
any person connected with the same can download the
FIR and file appropriate application before the Court for
redressal of his grievances and that the decision not to
upload the copy of the FIR on the website shall not be
CM(M) 687/2017 Page 7 of 20
taken by an officer below the rank of Deputy
Superintendent of Police or a person holding equivalent
post.
(b) As per the law aforesaid declared by the Supreme
Court, the contents of FIR, irrespective of whether
published in a newspaper as a news event or not, are in
public domain. Once the Police itself, as per law
declared by the Supreme Court is required to publish the
FIR, I fail to see how the defendants no.1 to 6 as
editor/publisher of the newspaper or the defendant no.7
as complainant, can be proceeded against in an action
for defamation for publishing the contents thereof.
(c) It is not as if the direction aforesaid of the Supreme
Court is without regard to the reputation of the persons
complained against in the FIR. The law of defamation,
which as far as India is concerned is uncodified and
based on common law, has always recognised certain
situations as privileged, words spoken or written wherein
cannot furnish a cause of action for a claim on account of
defamation. Supreme Court in Raja Ram Pal Vs.
Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184 held
that the term "privilege in law" is defined as an
immunity or an exemption from some duty, burden,
attendance or liability conferred by special grant in
derogation of common right. The term "privilege" was
stated to be derived from an expression "privilegium"
which means a law specially passed in favour of or
against a particular person.
(d) The reason is that the law recognises those
situations as where a person should have freedom of
speech, without being under the fear of being hauled up
subsequently for defamation.
(e) As far back as in Golap Jan Vs. Bholanath
Khettry MANU/WB/0056/1911 it was held by the
Division Bench of the Calcutta High Court that though
defamation is a good cause of action but even if the
CM(M) 687/2017 Page 8 of 20
complaint to the Magistrate was defamatory still the
complainant was entitled to protection from a suit for
defamation and this protection was the absolute privilege
accorded in the public interest to those who make
statements to the Courts in the course of and in relation
to judicial proceedings. The Division Bench of the
Madras High Court also in Pedda Sanjivi Reddy Vs.
Kondasari Koneri Reddi AIR 1926 Mad 521 held that the
statements made to the police officer which could only be
made with a view to their being repeated on oath before
the Magistrate as well as statements in the petition
presented to the Magistrate have been invested by the
common law of England with absolute privilege which
attaches not merely to the actual proceedings of any
tribunal exercising judicial function, but to all
preliminary steps which are in accordance with the
cognised and reasonable procedure of such a tribunal. It
was also held that the public policy which renders the
protection of witnesses necessary for the administration
of justice necessarily involves that which is a step
towards, and is part of the administration of justice,
namely the preliminary examination of witnesses to find
out what they can prove, and consequently statements
made by a witness to a litigant or his solicitor in
preparing proof are absolutely privileged. A subsequent
Division Bench of the Calcutta High Court in Madhab
Chandra Ghose Vs. Nirod Chandra Ghose AIR 1939
Cal 477 added that it is a matter of public policy and
administration of justice that witnesses giving their
evidence on oath in a Court of justice should not have
before their eyes the fear of being harassed by suits for
damages; the only penalty which they should incur if they
give evidence falsely should be an indictment for perjury.
No action for libel or slander was held to lie against
Judges, counsel, witnesses, or parties, for words written
or spoken in the course of any proceeding before any
Court recognised by law even though the words were
written or spoken maliciously, without any justification
CM(M) 687/2017 Page 9 of 20
or excuse, and from personal-ill-will and anger against
the person defamed. It was emphasised that a witness
must be protected for a preliminary statement as well. It
was further held that though some hardship may be
caused to the person defamed but it would be impossible
to administer justice, if people were to be afraid to give
their testimony.
(f) Subsequently, in Anjana Saikia (Das) Vs.
Anuradha Das 2003 SCC OnLine Gau 321 it was held
that though an action for defamation by statement in the
FIR would lie but only after the FIR case was decided.
Similarly, in Mahavir Singh Vs. Surinder Singh 2010
SCC OnLine P&H 9094 also it was held that mere
lodging of the FIR, though it may contain false
imputation, does not amount to defaming the person
against whom FIR is lodged. To the same effect is
Kamlesh Kaur Vs. Lakhwinder Singh 2008 SCC OnLine
P&H 920.
(g) A learned Single Judge of the High Court of
Madras in A.N. Shanmugam Vs. G. Saravanan 2015
SCC OnLine Mad 728 held the filing of a suit for
defamation in such circumstances to be a process to
escape from criminal prosecution and to make the
defendant to come to terms. It was held that if every
complainant who lodges the complaint with law
enforcing agency is to face civil cases for defamation on
the premise that the imputations made in the complaint
according to the accused are false, many people fearing
such actions on the part of the accused may not come
forward to lodge a complaint to the law enforcing
agency. It was further held that when an imputation has
been made in a complaint made to the law enforcing
agency with the belief that such agency would take
criminal action against the persons against whom such
imputations are made, the same provides a valid
exception taking such act outside the scope of tort of
defamation. It was held that the lodging of the complaint
CM(M) 687/2017 Page 10 of 20
with the police could not be considered to be publication
of a defamatory statement and that if any wrong is
committed by lodging a false complaint with the police
and thereby setting the criminal law in motion, it may
amount to malicious prosecution for which action can be
taken only after disposal of the criminal case, wherein a
specific finding is given to that effect.
(h) With respect to malicious prosecution also, I have
in Gangadhar Padhy Vs. Prem Singh 211 (2014) DLT
104 relying on S.T. Sahib Vs. N. Hasan Ghani Sahib
AIR 1957 Madras 646 held that action for malicious
prosecution is not favoured in law and should be
properly guarded and its true principles strictly adhered
to, since public policy favours the exposure of a crime
and it is highly desirable that those reasonably suspected
of crime be subjected to the process of criminal law for
the protection of society and the citizen be accorded
immunity for bona fide efforts to bring anti-social
members of the society to the bar of justice.
(i) Thus there is no cause of action for a claim for
defamation in favour of the plaintiff against the defendant
No.7 for the statements made by the defendant No.7 in
the complaint and in the FIR lodged by her.
(j) A Nine Judges Bench of the Supreme Court in
Naresh Shridhar Mirajkar Vs. State of Maharashtra
AIR 1967 SC 1 reiterated that Journalists have a
fundamental right to carry on their occupation under
Article 19(1)(g); they have also a right to attend
proceedings in Court under Article 19(1)(d); and that the
right to freedom of speech and expression guaranteed by
Article 19(1)(a) includes their right to publish as
Journalists a faithful report of the proceedings which
they have witnessed and heard in Court. Freedom of
speech and expression guaranteed by Article 19(1)(a)
was reiterated to include the freedom of press. It was
further held that what takes place in Court is public and
the publication of the proceedings merely enlarges the
CM(M) 687/2017 Page 11 of 20
area of the court and gives to the trial that added
publicity which is favoured by the rule that the trial
should be open and public; it is only when the public is
excluded from audience that the privilege of publication
also goes because the public outside then have no right to
obtain at second- hand what they cannot obtain in the
court itself. It was yet further held that if the matter is
already published in open court, it cannot be prevented
from being published outside the court room provided the
report is a verbatim or a fair account.
(k) I have already hereinabove noticed that it is not
the plea of the plaintiff that what has been published by
the defendant Nos. 1 to 6 in their newspaper is not a fair
account of the complaint and the FIR lodged by the
defendant no.7.
(l) The Division Bench of the High Court of Bombay
in Saroj Iyer Vs. Maharashtra Medical of Indian
Medicine, Bombay 2002 (1) Mh.L.J. 737 held that the
Medical Council being a Quasi Judicial Tribunal and the
inquiry before it being quasi judicial in nature, there can
be no blanket ban for public in attending the enquiry
proceedings.
(m) This Court in Mother Dairy Foods and Processing
Ltd. Vs. ZEE Telefilms Ltd. ILR (2005) 1 Delhi 87 was
concerned with an application for interim relief in a suit
by a major supplier of milk and milk products to restrain
a television channel from publishing and telecasting a
programme purported to be an investigation into
manufacturing of synthetic milk. It was the case of the
plaintiff that the programme was created and aired to
tarnish its image and reputation with the sole objective of
sensationalism and to defame. Finding that there was no
plea of conspiracy and the plea of malafides as set-forth
to be lacking in material particulars qua the persons at
whose behest the programme was being aired, interim
injunction was denied holding that media being a zealous
guardian of freedom of expression and speech, has a
CM(M) 687/2017 Page 12 of 20
right to comment vigorously and fearlessly on matters of
public interest and the efforts of the T.V. Channels in
unearthing and bringing to the notice of public the
menace of manufacturing of synthetic milk was a
laudable measure for public good.
(n) I may notice that similarly here, it is in public
interest that it be investigated whether PMKVY is being
misused to siphon off monies in the name of training,
without any real benefit to the purported beneficiaries
thereof.
(o) This Court in Vineet Jain Vs. NCT of Delhi
(2011) 184 DLT 596 was concerned with the complaint of
the offence of defamation by reporting in the media
contents of an FIR registered of offences under Section
294/109/34 of the Indian Penal Code, 1860 IPC read
with Section 8 of Immoral Trafficking Act and the raid
conducted at a hotel in Delhi. It was held that fair
reporting pertaining to a matter of public concern,
without insinuations and innuendos i.e. a news item
containing statements of true facts emanating from a
proper source i.e. police is not actionable for the offence
of criminal defamation; a fact pertaining to an FIR being
registered with reference to the activities found to be
carried out from the Hotel as recorded in the FIR made
public by the police, was also held to be not amounting to
a criminal defamation.
(p) The High Court of Bombay also in SNP Shipping
Services Pvt. Ltd. Vs. World Tanker Carrier
Corporation 2000(2) Mh.L.J. 570 held that a fair and
accurate gist of the findings given by the Court cannot
constitute a cause of action for defamation and the plaint
was rejected under Order VII Rule 11 of the CPC.
(q) A Constitution Bench of the Supreme Court, in
Sahara India Real Estate supra relied upon by the
counsel for the plaintiff held that the inaccuracy of
reporting of court proceedings will be a contempt of
CM(M) 687/2017 Page 13 of 20
court only if it can be said on the facts of a particular
case, to amount to substantial interference with the
administration of justice; that the privilege granted
under Section 4 of the Contempt of Courts Act, 1971 in
favour of the person who makes a fair and accurate
publication is based on the presumption of „open justice‟
in courts which permits fair and accurate reports of
Court proceedings to be published. It was held that the
media has a right to know what is happening in courts
and to disseminate the information to the public which
enhances the public confidence in the transparency of
court proceedings. It follows from the said judgment that
postponement of publication of court proceedings can be
applied for to the same court in which the proceedings
are pending and not to another court. I am in fact at
pains to understand in what context the counsel for the
plaintiff has relied on the said judgment. As far as
reliance on Swatanter Kumar supra is concerned, the
law as expounded and noticed above was noticed therein
also but in the facts of that case interim injunction was
granted. The same also is of no benefit to the plaintiff.
The same is the position of Reliance Petrochemicals Ltd
supra.
(r) Mention may lastly be made of my judgment in
Veer Arjun Newspaper Pvt. Ltd. Vs. Bahori Lal 2013
SCC Online Del 5096 wherein following the aforesaid
law it was held that reporting of contents of a complaint
is privileged and does not invite a claim for defamation.
(s) Supreme Court recently in Subramanian Swamy
Vs. Union of India (2016) 7 SCC 221 was concerned
with a challenge to the vires of Sections 499 and 500 of
the Indian Penal Code, 1860 constituting defamation as
defined therein as an offence, on the ground of the same
being violative of Article 19(1)(a) of the Constitution of
India. Negativing the challenge, Supreme Court held (i)
that while in a democracy, an individual has a right to
criticize and dissent but his right under Article 19(1)(a) is
CM(M) 687/2017 Page 14 of 20
not absolute and he cannot defame another person as
that would offend the victim‟s fundamental right to
reputation which is a facet of Article 21 of the
Constitution and one fundamental right cannot be given
higher status in comparison to the other and what is
required is proper balancing of the two and harmonious
construction in light of objective of fraternity and
fundamental duties envisaged under Article 51A(e) and
(j) of the Constitution; (ii) that Article 19(2) envisages
"reasonable restrictions"; right to say what may
displease or annoy others cannot be throttled; (iii) that
there can be no cavil that the right to freedom of speech
and expression is a right that has to get ascendance in a
democratic body polity but at the same time the limit has
to be "proportionate" and not unlimited; (iv) that the
restrictions should not be excessive and should be in
public interest; (v) the test of reasonableness cannot be
determined by laying down any abstract standard or
general pattern--it would depend upon the nature of the
right which has been infringed or sought to be infringed
and the ultimate impact i.e. the effect on the right has to
be determined; (vi) that the principles of proportionality
of restraint are to be kept in mind by the Court.
(t) Notice may also be taken of Shreya Singhal Vs.
Union of India (2015) 5 SCC 1 which was concerned
with the challenge to the vires of Section 66A of the
Information Technology Act, 2000 on the ground of being
violative of Article 19(1)(a) of the Constitution of India.
It was held (a) that the fundamental right of freedom of
speech and expression requires free flow of opinion and
ideas and an informed citizenry is a pre-condition for
meaningful governance and the culture of open dialogue
is generally of great societal importance and the ultimate
truth is evolved by free trade in ideas in a competitive
marketplace of ideas; (b) that it is only beyond a certain
threshold that Article 19(2) is kicked in; and, (c) that
wider reach and range of circulation over internet cannot
justify restriction of freedom of speech and expression on
CM(M) 687/2017 Page 15 of 20
that ground alone and that virtues of electronic media
cannot become its enemies.
(u) Applying the tests aforesaid also, no cause of
action in favour of plaintiff or against any of defendants
is disclosed.
(v) Supreme Court in Pearlite Liners (P) Ltd. Vs.
Manorama Sirsi (2004) 3 SCC 172 was concerned with a
suit for specific performance of a contract of personal
service. The same was dismissed by the trial court and
the first appellate court on a preliminary issue as to the
maintainability thereof but was in second appeal restored
by the High Court and remanded for trial. Supreme
Court held that once the reliefs claimed of, declaration
that the transfer order was illegal and void and of
declaration that the plaintiff continued to be in service of
the defendant could not be granted by the Court, such a
suit should not be allowed to continue and go for trial
and should be thrown out at the threshold on the ground
of want of jurisdiction of a Court to grant the reliefs
prayed for. Accordingly, the orders of the trial court and
the first appellate court were upheld and restored and the
order of the High Court of restoring the suit and
remanding it for trial was set aside. Though in the facts
of that case, the suit was dismissed after notice to the
defendant and after framing a preliminary issue but the
fact remains that in holding the suit to be barred, no
notice of any plea of the defendant was taken. If that is
so, then, in my opinion, the suit can also be dismissed
without notice to the defendant, if the Court finds that the
plaint discloses no cause of action."
The suit was accordingly dismissed.
16. The counsel for the respondent No.1/plaintiff has drawn attention to
the averments in the plaint against the petitioner/defendant to the effect (i)
that petitioner/defendant has interacted with the other defendants in giving
CM(M) 687/2017 Page 16 of 20
false, baseless and unsubstantiated information to the newspapers; (ii) that
the acts of the petitioner/defendant are not in discharge of his official duties;
and, (iii) that the petitioner/defendant as the Investigation Officer has no role
in prejudging the issue/controversy or the allegations leveled in the FIR.
17. However the said averments in paragraph 2 of the plaint are in the
context of the plea therein of no notice under Section 80 of CPC being
required to be served on the petitioner/defendant and no permission from the
State Government under Section 161 of the Bombay Police Act, 1951 for
prosecuting the petitioner/defendant being required. Else, the respondent
No.1/plaintiff in para 21 of the plaint, qua the petitioner/defendant has
merely pleaded that the petitioner/defendant has prejudged the entire issue
and has given false and unsubstantiated information to the newspapers and
that the said illegal act of the petitioner/defendant has not been done in
discharge of his official duty. The respondent No.1/plaintiff in this regard, in
paras 21 & 22 of the plaint, has reproduced the following passages from the
newspaper articles:
"21....
"However, Public Prosecutor Anuradha Mane pointed out that
the queries sent by Todale to the institute in London were not
replied to. Todale also denied seeking any franchisee
agreement between the Indian Institute and the main Institute in
London. In the last hearing, Todale had filed an affidavit
saying the applicants were not co-operating. "I have sent many
e-mails to EDEXCEL UK without any response. The
Chinchwad center is not registered with the commissionerate
for service tax purpose, Todale told Mirror. In fact, Todale told
the court that the center does not have a license to run the
institute and therefore no authority to issue such a certificate."
CM(M) 687/2017 Page 17 of 20
.....
22. Besides collecting information/documents regarding the
allegations leveled in the FIR, investigating the same and
submitting his report/charge sheet before the Hon‟ble Court,
Defendant No.7 has no role to play. Yet, Defendant No.7 in an
illegal manner and without any basis passed on utterly false
and unsubstantiated information against the Plaintiff to
Defendants Nos.1 to 4. Defendants Nos. 1 to 4, who were duty
bound to verify the authenticity/genuineness of information
supplied by Defendant No.7 did not carry out their duty and
simply relied on the said information and published the
aforesaid articles making grave defamatory and scandalous
allegations that "Cops say it is illegal and has no affiliation
with any UK Institute".
18. It is thus not the plea of the respondent No.1/plaintiff that the
information which the petitioner/defendant is attributed to have supplied to
the newspapers is beyond the contents of the FIR or is contrary to the
investigation carried out till then.
19. Moreover, what was published in the newspapers was in the language
of the newspapers. Though the respondent No.1/plaintiff instituted the suit
for recovery of damages for defamation against the newspapers also but have
since withdrawn the claim against them.
20. The counsel for the respondent no.1 / plaintiff though suggested that
the suit against the newspapers was withdrawn owing to the apology
tendered but could not make a certain statement to the said effect. The
impugned order does not record that any such apology was given. It merely
mentions that the suit against the newspapers had been amicably settled. I
have also enquired whether the publishers of the newspapers in the amicable
CM(M) 687/2017 Page 18 of 20
settlement have given any compensation to the respondent no.1 / plaintiff.
The answer is in the negative.
21. Thus it is a classic case where a suit for defamation is being proceeded
against not against the publishers of the news but against the persons who are
prosecuting the respondent no.1 / plaintiff for the offence complained.
22. The petitioner/defendant is still to give his deposition in pursuance to
the charge if any framed and if the suit continues to be pursued by the
respondent no.1 / plaintiff for a claim for damages against the
petitioner/defendant, the petitioner/defendant is unlikely to depose fairly.
23. I am thus of the view that no case for taking a view different from that
taken in either of the aforesaid judgments cited is made out.
24. I also find the act of the respondent no.1 / plaintiff of dragging the
petitioner/defendant as well as the complainants who are all resident of Pune
to Delhi for the purpose of the present suit to be by way of abuse of the
process of the Court.
25. Admittedly, the respondent no.1 / plaintiff has an Institute at Pune and
has been inviting prospective students at Pune to avail of the services of the
respondent no.1 / plaintiff. The respondent no.1/plaintiff could have very
well instituted the suit at Pune but chose to drag the petitioner and the other
defendants to an alien place.
26. The petition thus succeeds; the order dated 4th March, 2017 is set aside
and the application of the petitioner under Order I Rule 10 of the CPC stands
CM(M) 687/2017 Page 19 of 20
allowed. Resultantly, the name of the petitioner/defendant be deleted from
the array of defendants in the suit filed by the respondent no.1 / plaintiff.
RAJIV SAHAI ENDLAW, J.
JULY 10, 2017 'gsr/bs' CM(M) 687/2017 Page 20 of 20