Delhi District Court
Dr. Chandra Prakash vs Shri.Aniruddha Bahal & Others on 29 February, 2020
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 516618/2016
CNR No. DLSW010011902014
IN THE MATTER OF:
1. Dr. Chandra Prakash, IPS (Retd.) )
Flat No. 9, Ground Floor )
Pocket 1, Sector 6 )
Dwarka, New Delhi - 110075 ) ... Plaintiff
v.
1. Shri Aniruddha Bahal )
Aspire 4, Flat No. 1101 )
Supertech Emerald Court )
Sector 93A, Expressway )
Noida - 201301, Uttar Pradesh )
2. Sh. Rohtash Singh, ACP (Retd.) )
Tomar Dental Clinic cum Residence )
Opposite Dadadev Hospital (Delhi Govt.) )
Dabri Extension, Main Palam-Dabri Road )
New Delhi - 110045 ) ... Defendant
Date of institution of suit: 31.05.2014
Date of judgment reserved: 31.01.2020
Date of pronouncement of judgment: 29.02.2020
Page No. 1/107
JUDGMENT
"Good name in man and woman, dear my lord, Is the immediate jewel of their souls:
Who steals my purse, steals trash; 'tis something, nothing; 'Twas mine, 'tis his, and has been slave to thousands:
But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed."1
1. A good name is worth more than good riches was observed by the High Court of Delhi in Ram Jethmalani v. Subramaniam Swamy,2 wherein His Lordship Pradeep Nandrajog, J. (As His Lordship then was), in the concluding paragraph of the judgment quoted the above excerpt from the famous tragic play of the Bard.
2. The doyen of bar, Ram Jethmalani had hauled Subramaniam Swamy to Court to salvage his reputation when Swamy sullied his reputation by making statements and filing written submissions before Justice M.C. Jain Commission of Inquiry constituted under the Commissions of Inquiry Act, 1952 with regard to the assassination of Rajiv Gandhi, erstwhile Prime Minister of India at Sriperumbudur, Tamil Nadu that Jethmalani had received money from LTTE, a banned 1 Othello (The Tragedy of Othello, the Moor of Venice) - William Shakespeare, Act II, Scene III, p. 167 2 2006 (87) DRJ 603 Page No. 2/107 organisation, whose cadre had been indicted at a criminal trial of conspiring and succeeding in the assassination of Rajiv Gandhi.
3. Dr. Chandra Prakash, IPS (Retd.) the plaintiff before this Court is fighting a dual battle for his honour and life. Dr. Chandra Parkash has knocked the doors of the Court on being aggrieved by a sting operation purported to be conducted by Aniruddha Bahal, wherein Rohtas Singh made defamatory statements and which formed the basis of an article captioned as "Cops gave '84 rioters free hand: Sting, Seniors did not allow Cops to open fire" published in the Times of India, Delhi Edition on 22.04.2014. Dr. Chandra Prakash has sought damages to the tune of ₹15,00,000/- (Rupees Fifteen lakhs only) jointly and severally from the Aniruddha Bahal (defendant No.1), Rohtas Singh (defendant No. 2) and Arindem Sen Gupta, Editor, Times of India (defendant No. 3) 3.
Pleadings
4. The case urged by the plaintiff in his plaint is that he retired on superannuation on 30.11.2011, as an officer from the Indian Police Services (IPS) from the cadre of Union Territories now known as Arunachal Pradesh, Goa, Mizoram and Union Territories Cadre).
5. The plaintiff was posted as Deputy Commissioner of Police (DCP) of the South district during the time when the tragic communal riots broke in Delhi in the wake of the assassination of late Prime Minister of India, Smt. Indira Gandhi on 31.10.1984.
3 Arindem Sen Gupta died during the pendency of the legal proceedings and the suit against him was abated - vide order dated 20.05.2016 Page No. 3/107
6. The plaintiff has averred that shortly after the riots, Mr. Ved Marwah, IPS, who was in central deputation at the time of occurrence of the riots was brought to Delhi police by the Congress government by the then Commissioner of police. Mr. Marwah was appointed to head the inquiry committee to enquire into the occurrence of 1984 riots. It is averred by the plaintiff that the whole effort was to protect that the riots were a mere administrative failure without involvement of any political party and political leaders.
7. During the course of inquiry, the plaintiff on 15.02.1985 sent a report as being the DCP, South district, which went against the scheme of things. Thereafter, Mr. Marwah set on a course to destroy the credibility of the plaintiff and started bringing false evidence on record in his inquiry against the plaintiff. It is averred by the plaintiff that a separate defamation suit was filed by him in the year 1995 before the Hon'ble High Court of Delhi and subsequently on enhancement of pecuniary jurisdiction the same was transferred to the district court at Tis Hazari, Delhi. It is averred by the plaintiff that the said suit is at its final stages.
8. As per the averments made in the plaint, the defendant No. 1, namely, Aniruddha Bahal (hereinafter "defendant No. 1") is a journalist, who claims to be engaged in sting operations. The defendant No. 2, namely, Rohtas Singh (hereinafter "defendant No. 2") was the then station house officer (SHO) of police station Delhi Cantonment situated within the South district, which was headed by the plaintiff and the Page No. 4/107 largest number of deaths in the South district occurred in the jurisdiction of the police station headed by defendant No. 2. It is averred by the plaintiff that he as the DCP, South district suspended defendant No. 2 for dereliction of duty pending departmental inquiry against him sometime around mid-November 1984. The defendant No. 3, namely, Arindem Sen Gupta (hereinafter "defendant No. 3") editor of the Times of India, Delhi Edition, who is stated to have published the impugned news article/report dated 22.04.2014.
9. The plaintiff has further averred in the plaint that the defendant Nos. 1 and 2 in collusion made defamatory imputations against him. It is also averred by the plaintiff that the defendant No. 3 did not publish his version despite the plaintiff having requested him by letters dated 08.05.2014 and 27.05.2014. It is also averred by the plaintiff that the legal notice dated 15.05.2014 issued by him to the defendant No. 3 was not paid heed by the defendant No. 3.
10. The plaintiff has averred that the impugned news report/article published in the newspaper Times of India, Delhi Edn. has portrayed him as a police officer, who acted in violation of duty casted on him by law and who failed to maintain law and order. It is also averred by the plaintiff that the allegations made against him in the impugned news article/report depicted him as a police officer who can tamper with official records to suit his personal interest, a conduct unbecoming of a public officer. The plaintiff has further averred that the imputations casted against him are bound to arouse resentment, condemnation and Page No. 5/107 lower the plaintiff's estimation in others. It is averred by the plaintiff that the allegations against him are highly defamatory.
11. The plaintiff has averred in the plaint that the allegations made by defendant No. 2 against him were motivated, malicious, false, baseless and not in good faith. It is further averred by the plaintiff that to his knowledge, the defendant No. 2 prior to 09.05.2011 did not make any allegations against the plaintiff even before any departmental/government authorities, inquiry committees and inquiry commission(s) all the way from Marwah Inquiry Committee appointed in November 1984 to the Nanavati Commission in the year 2000.
12. The plaintiff has averred in the plaint that similar kind of allegations were made against him by one sub-inspector Ramesh Rana, who was posted under defendant No. 2 at the police station Delhi Cantonment during the 1984 riots. It is averred by the plaintiff that during the course of statutory departmental inquiry held against him in the year 1998, after recording of evidence, the credibility of sub- Inspector Rana was rated as nil and the inquiry report was submitted by the commission of inquiries to the Ministry of Home Affairs, Government of India, which was the cadre controlling authority as the plaintiff was an Indian police officer under their command and control.
13. The plaintiff has averred that shortly after the riots in the month of November 1984, he suspended sub inspector Ramesh Rana and the defendant No. 2 pending departmental inquiry, as there were reports against them for reporting very less number of killings in the police Page No. 6/107 station Delhi Cantonment under their jurisdiction, through wireless message as compared to the actual number of killings after first day of rioting. It is further averred by the plaintiff that the killings on the later days could have been averted by deploying additional resources had defendant No. 2 not resorted to underreporting of killings.
14. The plaintiff on 28.04.2014 got the legal notice issued to defendant No. 2 calling upon him to deny the false allegations made against the plaintiff and also tender an unqualified public apology through media by 12.05.2014. It is further averred by the plaintiff that in case the defendant No. 2 decides to stick to his guns of the false allegations and fails to produce genuine and cogent evidence in support of his allegations, the plaintiff intends to file civil and criminal proceedings of defamation and other related offences in appropriate court of law at the risk of defendant No. 2. It is averred by the plaintiff that a copy of notice dated 28.04.2014 was also issued to defendant No. 1 for necessary action, as per the notice.
15. The plaintiff has averred that he never received any response from defendant Nos. 1 and 2 to his notice dated 28.04.2014 by 12.05.2014. It is also averred by the plaintiff that meanwhile it came to his notice that defendant No. 1 had also published the false and baseless offending material on the website of Cobrapost. The plaintiff has averred that in view of the allegations interspersed with anchor's indecently abusive and unjustifiably defamatory comments, a supplementary legal notice dated 15.05.2014 was issued to defendant Page No. 7/107 No. 1. It is averred by the plaintiff that in his supplementary legal notice he had stated that the so-called "sting" was carried out and published not to serve any public good but to earn fat money by illegitimate means at the opportune time of General Elections 2014.
16. The plaintiff has averred in the plaint that the defendant No. 1 chose defendant No. 2, who had animus and grudge against the plaintiff. It is further averred by the plaintiff that the defendant No. 2 had an old axe to grind with him and was hellbent to lower the estimation of the plaintiff in the eyes of the public at large and damage his credibility and reputation. It is further averred by the plaintiff that the defendant No. 1 manipulated everything to make the story more sensational and saleable.
17. The plaintiff in paragraph No. 13 of the plaint has averred that it was common knowledge that as far as South district was concerned, the highest number of deaths of victim community, as per the Nanavati Commission report were 341 in the area of police station under the jurisdiction of defendant No. 2. The plaintiff has further averred that according to the Nanavati Commission Report, there was not even a single death in various other police stations situated in South district, such as Nizamuddin, Lodhi Colony, Defence Colony, Sarojini Nagar (earlier known as Vinay Nagar). It is averred by the plaintiff that the allegations levelled by defendant No. 2 are false, as the other police stations within the jurisdiction did not permit law and order situation to slip through hands and saved loss of life and property but it was the police station under the jurisdiction of defendant No. 2 where maximum Page No. 8/107 loss of lives and property occurred. The plaintiff has averred that where on one hand nine police stations other than the police station Delhi Cantonment could contain the loss of life and property, the spread of virus and the blame cannot be casted upon the DCP. It is averred by the plaintiff that the source of mischief, negligence would be the local station house officer of that particular police station i.e. SHO, P.S. Delhi Cantonment, Rohtas Singh. The plaintiff has further averred that it is a mystery that how defendant No. 1 believed the version of defendant No.2 as gospel truth. The plaintiff has averred that if defendant No. 2 had made some incriminating statements against him in unguarded moments during the so-called sting, it could have some significance but it is evident from the statements made by defendant No. 2 that he was simply offering his defence by blaming others.
18. The plaintiff has averred that the sting operation is a collaborative adventure between the defendant No.1 and defendant No. 2 in which both of them stood to gain in their own way, the defendant No.1 by creating a sensational story and defendant No. 2 availing a platform to provide and offer defence.
19. The plaintiff has averred in the plaint that he had been publicly appreciated by the members of the victim community in saving lives, particularly in the area of police station Nizamuddin and the felicitation function held was attended by the plaintiff along with other local police officers after seeking due permission from the departmental authorities. It is also averred by the plaintiff that individual members of the victim Page No. 9/107 community have appreciated his services in saving lives elsewhere in the South district. It is further averred by the plaintiff that the same is a matter of record in the various inquiry reports and in case it becomes necessary, the inquiry report will be proved during the trial of the suit.
20. The plaintiff has averred in the plaint that malice and lack of good faith on the part of defendant No.1 are evident from the fact that during the sting operation, the defendant No.1 took the version of other senior officers but wilfully avoided the plaintiff to take his version of facts, as the same would have demolished the defamatory statements made by his cohort, defendant No. 2. It is averred by the plaintiff that the defendant No. 1 omitted in narration to highlight the statement of the then station house officer of Mehrauli police station, namely, Jaipal Singh, who can be clearly seen and heard stating in the impugned sting video that the plaintiff was deliberately targeted by Mr. Marwah (Marwah Inquiry Committee of November 1984) for extraneous reasons.
21. The plaintiff has averred that the timing of publishing the sting operation in print by the defendant No. 1 as well as electronic media exposes the defendant No. 1 in his purpose and intent which is not to serve any public good but to make maximum money for himself as in the print media i.e. Times of India Article dated 22.04.2014, the statements of SHO level officers are shown recorded in the year 2011 but to lend the sting currency in time, the defendant No. 1 recorded the statements of Gautam Kaul and Subhash Tandon in 2014 at the time of Page No. 10/107 voting for General Elections 2014. It is averred by the plaintiff that the same shows that the defendant No. 1 wanted to bargain form the maximum price with the political parties at the opportune time.
22. The plaintiff has averred in the plaint not only by self-serving, false statements of the defendant No. 2 but also in defendant No. 1's scurrilous anchoring, he falsely projected with malicious intention and not in good faith to make his story sensational that Nanavati Commission had recommended penal action against the plaintiff but the plaintiff escaped action because of the fact of him having retired from the police services. The plaintiff has averred that on study of the Nanavati Commission Report it is disclosed no such recommendation for penal action was made. It is further averred that in fact there was no complaint affidavit against the plaintiff filed before the Nanavati Commission. It is averred by the plaintiff that the Nanavati Commission Report has reiterated the contents of Kusum Lata Mittal Report based on which a departmental inquiry was held against the plaintiff in the year 1988 and after recording of evidence no charge was proved against the plaintiff. The government unjustifiably and in violation of the rules disagreed with the findings of the Inquiry Report of the Commissioner of Inquiries. The plaintiff has averred that he battled against the decision of the government to not accept the departmental inquiry and challenged the same before the Hon'ble High Court of Delhi and an interim order dated 23.09.1998 was passed in favour of the plaintiff.
Page No. 11/10723. The plaintiff has averred that the matter was sub judice before the Hon'ble High Court of Delhi when he was summoned by the Nanavati Commission. The plaintiff has further averred that for the final decision the matter went up to the Central Administrative Tribunal and it was observed by the Central Administrative Tribunal that the plaintiff has been made a scapegoat and accordingly set aside the adverse order passed by the government with regard to the plaintiff's pension.
24. The plaintiff has averred that all the facts and circumstances averred by him in the plaint revealed the malicious intention, lack of good faith on the part of the defendant Nos. 1 and 2, to scandalise the plaintiff by the so-called sting operation. It is averred by the plaintiff that the defendant No. 1 resorted to such dubious tactics to make his story sensational and more saleable with no concern that it is the plaintiff's reputation which would be a collateral damage. It is averred by the plaintiff that in media one can make a false statement and get away, whereas in judicial proceedings in a court of law making a false statement may land a person in jail. It is further averred by the plaintiff that a notice dated 15.05.2014 was sent by him to the defendant No. 1 to confirm whether any reply to his notice dated 28.04.2014 had been sent by him to the plaintiff. A similar notice was also dispatched to defendant No. 2.
25. With regard to defendant No. 3, the plaintiff has averred that the defendant number three was concerned by publishing the impugned news item, which caused intense damage to the reputation of the Page No. 12/107 plaintiff and even lowered his estimation amongst retired police officers, serving police officers, relatives, friends and known social circles. It is averred by the plaintiff that the defendant No. 3 did not act in good faith and abandoned due care and caution at the peril of plaintiff's reputation. It is further averred by the plaintiff that the defendant No. 3 did not adhere to the professional standards and ethics of journalism, as he did not specify himself about the truth of the statements made against the plaintiff. It is averred by the plaintiff that journalists do not enjoy special privilege in cases of defamation and are at par with ordinary citizens. It is averred by the plaintiff in the plaint that ostensible show off in the news item cannot vouch for the interviews and the same is a subterfuge to collude with the mala fide, evil designs of defendant Nos. 1 and 2.
26. The plaintiff has averred in the plaint that the defendants acted wrongfully, maliciously and dishonestly with reckless disregard for truth and resultant of which the defendants are joint tortfeasors and are jointly and severally liable for damages be it general, special, exemplary and punitive for causing pecuniary and nonpecuniary losses to the plaintiff. It is averred by the plaintiff that he has suffered huge and substantial damage, as he is widely known in the areas of his postings among the retired and serving officers and as a minimalistic estimate, the plaintiff claims ₹15,00,000/- (Rupees Fifteen lakhs only) as damages from the defendants.
27. The plaintiff has averred that the cause of action arose to prefer and maintain the present suit against the defendants arose on 22.04.2014, Page No. 13/107 when the impugned news article/report was published in the newspaper and thereafter subsequent cause of action arose on the dates when the plaintiff issued notice to the defendants. It is averred by the plaintiff that the cause of action arose in Dwarka, New Delhi where the newspaper in question is widely circulated and read. It is also averred by the plaintiff that the cause of action arose in New Delhi as serious injury and damage has been caused to his reputation. Hence, the suit for damages to the tune of ₹15,00,000/- (Rupees Fifteen lakhs only) on account of the plaintiff being defamed by the defendants.
28. The written statement preferred by Aniruddha Bahal (defendant No. 1) has taken the preliminary objection of the suit being barred for misjoinder of parties. The defendant No. 1 has also taken a preliminary objection of no cause of action having arisen in favour of the plaintiff to prefer a suit for damages against the defendant No. 1. The defendant No. 1 has also taken a preliminary objection that the plaint is bereft of any single averment with regard to in whose eyes and for whom the plaintiff has been defamed. The defendant No. 1 has taken a preliminary objection that the plaint preferred by the plaintiff is nothing but false and concocted facts to mislead the Court and to harass the defendant No. 1. The defendant No. 1 has also taken a preliminary objection on the maintainability of the suit for want of jurisdiction.
29. From the perusal of the reply on merits in the written statement, the defence urged by the defendant No. 1 is that of a shield of the justification of truth. It is urged by the defendant No. 1 that the news Page No. 14/107 article was based on information already available in the public domain and which also formed part of Mishra Commission, Kusum Lata Lata Mittal Report, Nanawati Commission Report.
30. The defendant No. 1 in its written statement has declined that he had colluded with the other defendants, particularly, defendant No. 2 and caused any loss and damage to the reputation of the plaintiff. The defendant No. 1 has declined all the allegations made by the plaintiff in his plaint that the sting operation was undertaken by the defendant Nos. 1 and 2 to make maximum money in the year of General Elections. The defendant No. 1 has averred in his defence that Cobrapost is a purely journalistic venture of forum for media and literature, a non-profit non- government organisation advocating free media by generating critical discussion on key social issues. It is also averred by defendant No. 1 in his defence that he absolutely has no commercial interest. In short, the defendant No. 1, has urged in his defence that he never sullied the reputation of the plaintiff and with the plaintiff not being defamed, no case for awarding damages is made out.
31. The written statement preferred by the defendant No. 2 is also on the similar lines of the defendant No. 1 that no disrepute has been caused to the plaintiff. It is urged by the defendant No. 2 that the plaintiff had unfairly and in a biased manner impleaded him on false grounds in an arbitrary and illegal manner in the year 1984. It is averred by the defendant No. 2 in his statement that the plaintiff is nursing an Page No. 15/107 old grudge against the defendant No. 2, which is apparent nay evident from the plaint.
32. The defendant No. 2 has also urged that the suit is not maintainable against him for want of cause of action. It is urged by the defendant No. 2 that he was neither involved in the alleged sting operation carried out by Cobrapost nor in the impugned news article published in the Times of India on 22.0.2014.
33. The defendant No. 2 has denied seeing the original compact disc (CD) of the alleged sting operation but he has averred in his defence that to his knowledge he never gave any interview and spoke to any personal of the Cobrapost alleging imputations against the plaintiff.
34. The defendant No. 2 has admitted in his defence that he was the station house officer of the police station Delhi Cantonment in the year 1984 and the plaintiff was the Deputy Commissioner of Police of South district. The defendant No. 2 has denied any dereliction of duty on his part. It is averred by the defendant No. 2 that the plaintiff was biased towards him on account of the defendant No. 2 being an upright officer for which the plaintiff suspended him temporarily. It is averred by the defendant No. 2 that the plaintiff did not disclose in his plaint that the defendant No. 2 was reinstated with all the benefits and even promoted to the rank of Asstt. Commissioner of Police. The defendant No. 2 has averred in the written statement that the plaintiff has concealed the fact from this Court that the defendant No. 2 was given a clean chit by the Ranganath Misra Commissioner. It is further averred by the defendant Page No. 16/107 No. 2 that the plaintiff had been hellbent to ruin his reputation. In short, the defendant No. 2 has denied having defamed the plaintiff in any manner. The defendant No. 2 has urged that the suit preferred by the plaintiff against him be dismissed as no case of defamation is made out.
35. The written statement preferred on behalf of the defendant No. 3 assails the maintainability of the suit for being a total abuse of process of law.
36. The defendant No. 3 has stated in his defence that the news article published relied upon a sting and the defendant repeatedly emphasised the fact that the sting revealed are only allegations and defendant did not in any way endorse them. It is urged by the defendant No. 3 that he was careful in ensuring that nowhere did it appear that it was either vouching for the authenticity of the sting and the allegations made by those stung, even if the tapes were authentic. The defendant No. 3 has averred in his written statement that he was careful to an extent that he even made it clear in the article that Rohtas Singh (defendant No. 2 herein), the man making the allegations against the plaintiff was himself indicted by an inquiry commission.
37. The defendant No. 3 has urged in his defence that the news article/report was published based on the premise, for the information of his readers in public interest without any illegal or malice against the plaintiff. It is averred by the defendant No. 3 that it is within common knowledge that innocent people of particular community lost their lives and with passage of time there are people, who are still fighting in Page No. 17/107 Courts to get justice. It is urged by the defendant No. 3 that the sting was on matter of public interest and the same was published for the information of the readers as the readers have a right to know, which is a part of freedom of speech of expression indeed a valuable right granted by the Constitution of the country. The defendant No. 3 has averred that the article was published only with the intention to inform its readers about the sting and what has come out in the sting without giving his views or vouching for the authenticity of the sting of statements of the stung.
38. The defendant No. 3 has denied all the allegations made by the plaintiff and taken a stance that no case for defamation is made out in favour of the plaintiff and the question of awarding damages to the tune of ₹15,00,000/- (Rupees Fifteen lakhs only) does not arise.
39. To the written statements filed by the defendants, the plaintiff did file respective replications.
Issues
40. On completion of pleadings, the following issues were framed by the Court vide order dated 15.01.2016:
"1. Whether the News item dt, April 22, 2014 was published in The Times of India by the Defendant No. 3? ... OPP
2. Whether the contents of the sting operation were published on Cobrapost Website by the defendant NOI? ... OPP
3. Whether the contents of News Item mentioned in issue No. 1 are defamatory of the plaintiff? ... OPP Page No. 18/107
4. Whether the contents of sting operation posted on website of Cobrapost are defamatory of the plaintiff?... OPP
5. Whether the statements made by the defendant No. 2 in sting operation in question are defamatory of the plaintiff? ... OPP
6. Whether the plaintiff is entitled for the damages as claimed? ... OPP
7. Relief."
Evidence led by the Parties
8. To prove his case, the plaintiff (PW1) stepped in the witness box along with Dr. Rajneesh Mohan Siwan (PW2), Vikas Yadav (PW3) and Anuj Kumar (PW4). The trial commenced from 08.04.2016 until 25.05.2018.
9. The plaintiff (PW1) tendered his evidence by way of affidavit Ex.PA, and his examination-in-chief was recorded on 08.04.2016. The plaintiff (PW1) relied upon the following documents:
S.No. Exhibit mark put Description and Date, if any of the on the document document 1 Ex.PW1/1 Newspaper dated 22.04.2014 2 Ex.PW1/2 Legal notice dated 28.04.2014 issued to defendant No. 2 3 Ex.PW1/3 Legal notice dated 28.04.2014 issued to defendant No. 1 4 Ex.PW1/4 Legal notice dated 15.05.2014 issued to defendant No. 1 5 Ex.PW1/5 Copy of order dated 23.09.1998 passed by the Hon'ble High Court of Delhi Page No. 19/107 6 Ex.PW1/6 Legal notice to defendant No. 2 dated 15.05.2014 7 Ex.PW1/7 Postal receipts of sending the legal notice to defendant No. 3 dated 08.05.2014 8 Ex.PW1/8 Delivery report 9 Ex.PW1/9 Postal receipt sending the notice dated 08.05.2014 to defendant No. 3 10 Ex.PW1/10 Application dated 14.03.2015 placing additional documents on record 11 Ex.PW1/11(Colly.) Postal receipts sending the same to defendant No. 1; reply from postal authorities to RTI application dated 20.08.2014 and clarificatory letter dated 29.09.2014 to defendant No. 1 on 30.04.2014 and 17.05.2014 12 Ex.PW1/12(Colly.) Legal notice dated 29.04.2014 and 16.05.2014 to defendant No. 2 13 Ex.PW1/12 Various letters from the postal authority in respect of service of legal notice 14 Ex.PW1/14 CD containing defamatory imputations put on Cobrapost website of defendant No. 1 15 Ex.PW1/15 Certificate under Section 65B of the Indian Evidence Act, 1872 16 Ex.PW1/16 Reply of defendant No. 1 to the notice served upon him
10. None of the plaintiff' witnesses sans the plaintiff relied upon any documentary evidence. On 25.05.2018, the plaintiff closed his evidence
- vide order dated 25.05.2018.
11. Neither the defendant No. 1 nor defendant No. 2 led any evidence despite opportunities granted to them. The defence evidence of Page No. 20/107 defendant No. 1 was closed vide order dated 16.08.2018 and whereas the defence evidence of defendant No. 2 was close vide order dated 12.07.2018.
Submissions by the Learned Counsel for the Parties
12. Mr. Babu Lal and Mr. Kuljeevan Sidharth, Advocates for the plaintiff and Mr. Shashank Dewan and Mr. Shiv Chopra, Advocates for the defendant No. 1 and Mr. Anujay Tiwari, Advocate for the defendant No. 2 advanced their arguments.
13. Before, I proceed further reiterating the submissions advanced by the learned counsels for the parties, I deem appropriate to note the expanse of the final arguments advanced by the learned counsels for the defendant No. 1.
14. The final arguments were advanced by the learned counsels for the parties at length on 18.12.2019 and matter was reserved for judgment for 17.01.2020. However, post 18.12.2019, an application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter "CPC") was moved by the defendant No. 1 seeking relief in the nature of permission of the Court to place on record the certified copy of the Nanavati Commission Report inter alia issuance of directions to the plaintiff to give his no objection qua placing of the certified copies of the said report and issuance of summons to the record keeper/concerned person, Ministry of Home Affairs to prove the same.
15. Subsequently, the defendant No. 1 preferred a petition before the High Court of Delhi titled as Aniruddha Bahal v. Dr. Chandra Prakash Page No. 21/107 & Anr. - CM(M) No. 47/2020, wherein order dated 30.01.2020 was passed and directed the parties to appear before the trial Court on 31.01.2020 and address their submissions, if any, in respect of the Nanavati Commission Report. The High Court considering the medical condition of the plaintiff herein requested the trial Court to dispose of the matter expeditiously, if possible, within a period of 15 days from 30.01.2020.
16. Thereafter, on 31.01.2020, Mr. Shiv Chopra, learned counsel for the defendant No. 1 supplemented the arguments already advanced by Mr. Shashank Dewan, Advocate on 18.12.2019. Mr. Babu Lal, learned counsel for the plaintiff once again rejoined his arguments on 31.01.2020. The arguments advanced by the learned counsels for the parties on 18.12.2019 and 31.01.2020 are captured in the following paragraphs.
17. Mr. Babu Lal, learned counsel for the plaintiff submitted that the plaintiff has preferred a suit for recovery of damages of ₹15,00,000/- (Rupees Fifteen lakhs only) on account of defamation. The learned counsel submitted that the plaintiff has been defamed in the eyes of public at large. The learned counsel further submitted that to prove his case not only the plaintiff but also Dr. Rajesh Mohan Siwan, Vikas Yadav and Anuj Kumar stepped into the witness box.
18. The learned counsel for the plaintiff further submitted that the defamatory material was published on Cobrapost by defendant No. 1 and also by the Times of India. The learned counsel further submitted Page No. 22/107 that the defendant No. 2 made defamatory statements against the plaintiff.
19. Mr. Babu Lal, learned counsel for the plaintiff submitted that in the year 1984 the plaintiff was a deputy commissioner of police (DCP) of south district, Delhi and the defendant No. 2 at that point in time was the station house officer (SHO) of police station Delhi Cantonment. The learned counsel further submitted that it is the defendant No. 1 who conducted a sting operation and wherein the statements of defendant No. 2 that it was the plaintiff who passed orders to not allow the defendant No. 2 to open fire. The learned counsel for plaintiff further submitted that the defendant No. 2 during the sting operation stated that the wireless messages were logged in the logbook and it was the plaintiff who tampered with the logbook and changed the messages in the logbook to suit himself.
20. With regard to the defendant No. 3, the learned counsel for plaintiff submitted that the defendant No. 3 was the editor of Times of India on the relevant date of 22.04.2014 i.e. date of publication of the impugned news article/report.
21. The learned counsel for the plaintiff submitted that the impugned news article/report published in Times of India on 22.04.2014 (Ex.PW1/1) has been placed on record. The learned counsel for the plaintiff further submitted that the impugned video published by the defendant No. 1 on Cobrapost has also been filed by the plaintiff in a Page No. 23/107 compact disc (CD)-(Ex.PW1/14) along with a certificate under Section 65B of the Indian Evidence Act, 1872.
22. Mr. Babu Lal, learned counsel for the plaintiff submitted that the plaintiff's case is admitted by the defendants. The learned counsel for the plaintiff further submitted that it is not disputed by the parties that the plaintiff was an IPS officer and DCP, South, Delhi. The learned counsel further submitted that the fact of Aniruddh Bahl being the editor of Cobrapost is admitted. The publication of impugned article in the Times of India on the basis of the publication of impugned video of the sting operation by Cobrapost is also admitted.
23. The learned counsel for plaintiff submitted that the defence of investigative journalism does not come to the rescue of the defendant No. 1. The learned counsel for the submitted that the defendant No. 1 did not personally conduct the investigation with regard to the impugned news report.
24. The learned counsel for plaintiff further submitted that the defence of truth and the privilege of being a journalist and the information was shared by the defendant No. 1 in public interest is hollow and an afterthought.
25. Mr. Lal, learned counsel for the plaintiff submitted that the plaintiff issued notice to all the defendants and the addresses of the defendants have not been disputed by them. However, the defendant No. 1 has denied the receipt of notice. The learned counsel further submitted that a supplementary notice was also dispatched by the plaintiff.
Page No. 24/10726. The learned counsel for the plaintiff submitted that during the disturbing time of Sikh riots when the Government of India sought comments from the plaintiff, the plaintiff had requested for imposition of curfew, however it was the Central government and the Ministry of Home Affairs who did not take any action. The learned counsel for the plaintiff further submitted that it is the government's story of letting the axe fall upon the government employees and the situation be depicted as a failure of the police.
27. Mr. Lal, learned counsel for the plaintiff submitted that the Kusum Lata Report was with regard to a committee constituted of Kusum Lata and Kapoor, J. The plaintiff was amongst various other IPS officers who were castigated by Kusum Lata. The learned counsel further submitted that the plaintiff herein challenged the findings made by the Kusum Lata Committee and the suit of the plaintiff was decreed by the trial court. The learned counsel further submitted that though the judgement passed by the trial court has been assailed in appeal before the High Court of Delhi but the findings of Kusum Lata Report cannot be held as the gospel truth and the defendant No. 1 not be permitted to hide behind the cloak of such a report.
28. The learned counsel for the plaintiff submitted that the malice on part of the defendants is writ large, as the sting operation, recordings were made in the year 2011 but the same were circulated in the year 2014, particularly at the time of General Elections, 2014.
Page No. 25/10729. The learned counsel for the plaintiff submitted that the plaintiff did take steps to save and protect the members of Sikh community. The learned counsel further submitted that the plaintiff has been felicitated by the Sikhs at gurdwara Bhogal, Delhi.
30. The learned counsel for the plaintiff submitted that the plaintiff has proved the averments made by him in the pleadings by leading evidence, whereas the defence urged by the defendant No. 1 is a moonshine. The learned counsel for the plaintiff further submitted that the sting operation video was published on the website of Cobrapost and which was downloaded on a compact disc, however the impugned video subsequently stands removed from the website of the defendant No. 1.
31. With regard to the defence of justification of truth urged by the defendant No. 1 on the basis of Nanavati Commission Report, the learned counsel for the plaintiff submitted that the same cannot come to the rescue of the defendant No.1 as the defendant No. 1 did not step into the witness box. To buttress his submission, Mr. Lal, learned counsel for the plaintiff placed reliance upon Vidhyadhar v. Mankikrao.4 The learned counsel for the plaintiff submitted that adverse inference shall be drawn against the defendant No. 1. The learned counsel for the plaintiff placed reliance upon C.C. Alavi Haji v. Palapetty Muhammed & Anr.5 to show that a notice to the defendants was dispatched by post 4 AIR 1999 SC 1441 5 AIR 2007 SC 1705 Page No. 26/107 by the plaintiff. The learned counsel for the plaintiff also relied upon Smt. Jagdish Kaur v. Rabinder Singh Mathoda.6
32. The learned counsel for the plaintiff submitted that the only defence available to defendant No.1 is actus novice. The learned counsel further submitted that actus novice has exceptions, viz, knowledge of republishing; morally bound to publish. The learned counsel placed reliance upon Slipper v. British Broadcasting Corpn.7
33. The learned counsel for the plaintiff further submitted that the evidentiary value of an inquiry report i.e. Nanavati Commission Report is zero and cannot come to the rescue of the defendant No. 1. The learned counsel for the plaintiff placed reliance upon Sewak Ram v. R.K. Karanjiya.8
34. Mr. Babu Lal, learned counsel for the plaintiff submitted that the plaintiff closed his evidence on 25.05.2018 and whereas the defendant No.1 closed his evidence on 16.08.2018. The learned counsel further submitted that the defendant No. 2 closed his evidence on 12.07.2018. The learned counsel further submitted that none of the defendants stepped in the witness box. The learned counsel for the plaintiff submitted that subsequent to the closure of the defendants' evidence, an application under Order XVIII, Rule 17, CPC was moved by the defendant No.1 to recall a witness i.e. the plaintiff. The learned counsel 6 AIR 1991 Del 50 7 (1991) 1 ALL ER 165 8 AIR 1981 SC 1514 Page No. 27/107 for the submitted that the said application was allowed vide order dated 19.02.2019.
35. The learned counsel for the plaintiff drew attention of the Court that the defendant No.1 having once exhausted an option of moving a motion under Order XVIII, Rule 17, CPC moved a subsequent application to recall the plaintiff and examine him on the point of their defence to the suit i.e. justification of truth by relying upon the Nanavati Commission Report. The learned counsel for the plaintiff submitted that the subsequent application moved by the defendant No. 1 is an utter abuse of process of law as the said relief by a similar application was sought. The learned counsel for the plaintiff drew attention of the Court to the subsequent application moved by the defendant No.1 that the same has not been signed by the defendant No.1 but being moved by a constituted attorney, who also does not stand substituted in accordance with law.
36. The learned counsel for the plaintiff submitted that Section 106 of the Indian Evidence Act, 1872 clearly provides that when any fact is within the knowledge of any person the burden of proving such fact is upon that person. The learned counsel for the plaintiff submitted that neither the defendant No.1 nor defendant No.2 stepped into the witness box and thus not only the defendants have failed to prove their defence but also adverse inference shall be drawn against them.
37. Mr. Lal, learned counsel for the plaintiff submitted that the special privilege being a media person, press cannot save the defendant Page No. 28/107 No.1 and to buttress his submission, the learned counsel placed reliance upon Harbhajan Singh v. State of Punjab.9
38. The learned counsel for the plaintiff also placed reliance upon Subramaniam Swamy v. Union of India10 and submitted that right to honour, dignity and reputation are the basic constituents of Article 21 of the Constitution of India, 1950. The learned counsel further submitted that to say such a right can be impinged and the same remains unprotected inter se disputes pertaining to reputation would not be correct. The learned counsel submitted that right to reputation is an unassailable right and the same cannot be transgressed by any person and in case of unwarranted and vicious transgression, the law provides remedy in civil law i.e. tortious liability and also in criminal law under the Indian Penal Code, 1860.
39. The learned counsel for the plaintiff submitted that the defence urged by the defendants indeed falls like a pack of cards as the defendant No.1 failed to seek comments of the plaintiff before publishing the impugned video and the disparaging statement made by the defendant No. 2. The learned counsel for the plaintiff placed reliance upon Reynolds v. Times Newspapers 11 and drew attention that the common law approach towards the exception of privilege to any statement is recoiled with elasticity, which enables the Court to consider the same in light of given facts and circumstances.
9 AIR 1966 SC 97 10 AIR 2016 SC 2728 11 (1999) 4 ALL ER 609 Page No. 29/107
40. Mr. Babu Lal submitted that a parallel may be drawn by this Court by taking into consideration:
(i) Seriousness of the allegation. The more serious the charge, more the public is misinformed and the individual harmed, if the allegation is not true.
(ii) The nature of the information, and the extent to which the subject matter is a matter of public concern.
(iii) Source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
(iv) The steps taken to verify the information.
(v) The status of the information. The allegation may have
already been the subject of an investigation which commands respect.
(vi) The urgency of the matter. News is often a perishable commodity.
(vii) Whether comment was sought from the plaintiff. He may have information others do not possess or have disclosed. An approach to the plaintiff will not always be necessary.
(viii) Whether the article contained gist of the plaintiff's side of the story.
(ix) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.Page No. 30/107
(x) The circumstances of the publication, including the timing.
41. The learned counsel further stressed that if it pleases this Court, the plaintiff's case is squarely covered within the ambit of above factors to be considered and it is apparent nay evident that the statements made by the defendant No. 2 reeked of mala fide and the defendant No. 1 failed to contact the plaintiff and take account of his knowledge and side of story.
42. The learned counsel for the plaintiff concluded his argument on the note that the defendant is liable for defaming the plaintiff and neither the defence of justification of truth nor the privilege of free press and media can come to the rescue of the defendants.
43. Per contra, Mr. Shashank Dewan, learned counsel for the defendant No.1 bravely flanked the challenge to the arguments advanced by Mr. Babu Lal, learned counsel for the plaintiff.
44. Mr. Dewan, learned counsel for the defendant No.1 contended that the suit of the plaintiff must fail for misjoinder and non-joinder of parties. The learned counsel submitted that the plaintiff failed to implead Cobrapost as a party to the suit. The learned counsel further submitted that the chief editor of Cobrapost cannot be impleaded as the prime defendant. The learned counsel for the defendant No. 1 further submitted that the plaintiff failed to prove that defendant No.1 is the chief editor of Cobrapost. The learned counsel further submitted that the plaintiff has failed to implead the publisher of the impugned article i.e. Times of India newspaper.
Page No. 31/10745. The learned counsel for defendant No.1 further challenged the maintainability of the suit for want of territorial jurisdiction. The learned counsel for the defendant No.1 submitted that as per the plaintiff, the defendant No.1 works in Noida, Uttar Pradesh. The learned counsel further submitted that none of the witnesses in whose eyes the plaintiff has been defamed reside within the territorial jurisdiction of the South West District, Delhi. The learned counsel further submitted that the plaintiff cannot invoke jurisdiction of this Court hinged to his residence.
46. Mr. Dewan, learned counsel for the defendant No. 1 contended that the contents of the compact disc (CD) on record marked as Ex.PW1/14 are inadmissible in evidence. The learned counsel for the defendant No. 1 further submitted that the same is inadmissible in evidence as the same does not stand to be proved in accordance with Section 65B of the Indian Evidence Act, 1872. The learned counsel further submitted that the evidence led by the plaintiff runs contrary to the judgement passed by the apex court in Anvar. P.V. v. P.K. Basheer.12 The learned counsel further submitted that even though a certificate under Section 65B of the Indian Evidence Act, 1872 has been filed but the same suffers from material defect, as the computer in question is that of the brother-in-law of the plaintiff, which is recorded in the testimony of PW2, whereas the certificate states to be saved in the computer owned by PW2. The learned counsel further submitted that the compact disc is bad in law and not an evidence to be relied upon.
12 (2014) 10 SCC 473 Page No. 32/107
47. The learned counsel for defendant No. 1 further unleashed his attack on the compact disc by submitting that tampering of the same cannot be ruled out. The learned counsel further submitted that this Court must not lose sight of the fact that the plaintiff (PW1) is highly qualified in law. The learned counsel drew attention of the Court to the question put to PW1 with regard to 5 compact discs prepared to which the answer by PW1 was that he could not tell which out of the five compact discs was prepared first. The learned counsel for the defendant No. 1 further submitted that the compact disc have not been sent to the CFSL for forensics analysis and thus the genuineness of the compact disc relied upon by the plaintiff is questionable and cannot be relied upon.
48. Mr. Dewan, learned counsel for the defendant No. 1 put his entire weight behind his arguments, 'on merits' against the plaintiff's claim. The learned counsel submitted that the entire evidence led by the plaintiff is beyond pleadings and thus the plaintiff's claim is bound to fail.
49. The learned counsel for the defendant No. 1 further submitted that the plaintiff has failed to prove any of the essential ingredients to show that he has been defamed by the defendant No. 1. The learned counsel for the defendant No. 1 further submitted that not only the plaintiff has failed to prove that he is a man of high standing but also how his reputation has been lowered on account of the purported impugned video. The learned counsel for the defendant No. 1 further Page No. 33/107 submitted that neither any award of medals, gallantry awards and/or citations have been brought on record by the plaintiff, thus the plaintiff's claim of having being defamed by the defendant No. 1 are hollow. The learned counsel further submitted that neither of the plaintiff's colleagues nor his juniors, staff or officers who have served under him have stepped in the witness box to vouch for his reputation. The learned counsel to buttress his submission placed reliance upon the law report of Bhubhan Chandra v. Buddhiam 13 and Ram Subhag Pandey v. State.14
50. The learned counsel for defendant No. 1 further submitted that the plaintiff has also failed to make out a case and satisfy the second ingredient to prove defamation and placed reliance upon the paragraph No. 40 of the latest judgment of the High Court of Delhi in Indian Potash Ltd. v. Media Contents and Communication Services (India) Pvt. Ltd. & Anr.15 Mr. Dewan, learned counsel for the defendant No. 1 stressed that there can be no claim for defamation without a person being defamed in the eyes of others.
51. The learned counsel for defendant No. 1 further submitted that PW1 during his cross-examination on 01.08.2016 admitted that he has not named any person in his pleadings and evidence in whose presence he has been defamed. The learned counsel further submitted that having realised his fallacy, the plaintiff on 20.08.2016 moved an application 13 II (2007) CCR 462 (Uttarakhand High Court) 14 (1971) ALJ 1005 15 CS(OS) No. 1717/2007 date of decision 10.04.2019 Page No. 34/107 under Order XVI, Rule 1 read with Section 151 CPC for bringing on record his list of witnesses.
52. The learned counsel for the defendant No. 1 further submitted that Dr. Rajneesh Mohan (PW2) during his cross-examination stated that he cannot produce any receipt of a document to show that he is subscriber of Times of India. The learned counsel further submitted that PW2 during his cross-examination by the learned counsel for the defendant No. 2 stated that he did not verify the authenticity of news item published in the newspaper Times of India on 22.04.2014. The learned counsel for defendant No. 1 submitted that this Court must not lose sight of the fact that PW2 is the son of the plaintiff.
53. Mr. Dewan, learned counsel for defendant No. 1 submitted that to prove the loss of reputation, the plaintiff is relying upon the testimony of Anuj Kumar (PW4). The learned counsel submitted that PW4 is a resident of Asola, Fatehpur Beri, Delhi, which is beyond the territorial jurisdiction of the Courts of South West District. The learned counsel further submitted that PW4 denied the suggestion that he has been asked to depose on behalf of the plaintiff at the belated stage, as the plaintiff wanted to improve his case after realising the lacuna. The learned counsel for the defendant No. 1 further submitted that PW4 admitted that his brother is a friend of plaintiff's son. The learned counsel for the defendant No. 1 further submitted that the evidence by way of affidavit of PW4 marked as Ex.PW4/A bears the attestation stamps of an Oath Commissioner dated 01.10.2016 and he was cross-examined on Page No. 35/107 22.05.2018, who during his cross-examination stated that he spoke with the plaintiff around 10 days before he signed his evidence by way of affidavit. The learned counsel for the defendant No. 1 submitted that the impugned article on account of which the plaintiff has claimed he has been defamed in the eyes of PW4 is stated to be published on 22.04.2014, however PW4 has failed to mention in his examination-in- chief and during cross-examination the date of publication of the impugned article in Times of India. The learned counsel for the defendant No. 1 stressed that none of the plaintiff's witnesses were able to tell the language in which the sting operation was conducted. The learned counsel submitted that the plaintiff failed to prove whether any of his witnesses in whose eyes he claims to be defamed had seen the impugned video posted on the website of Cobrapost.
54. After having advanced his rebuttal arguments at length, Mr. Dewan, learned counsel for the defendant No. 1 began his anchor arguments i.e. justification of truth as an absolute defence. The learned counsel for defendant No. 1 submitted that the impugned video on the basis of which the impugned article was published in the Times of India on 22.04.2014 is nothing but reiteration of truth and whole truth, which lies on the bedrock of the report of Justice Nanavati Commission of Inquiry (1984 Anti-Sikh Riots) (hereinafter "Nanavati Commission Report"). The learned counsel read out the page Nos. 58, 62, 63, 73 and 164 of the Nanavati Commission Report.
Page No. 36/10755. The learned counsel for the defendant No. 1 submitted that in the Nanavati Commission Report it has been held that there is enough evidence to show that the policemen posted in some of the localities of Delhi Cantonment, R.K. Puram, Naraina, Hauz Khas, Mehrauli, Lajpat Nagar, Srinivaspuri, Lodhi Colony, Nizamuddin either remained passive and watched the incidents as spectators or they had actively instigated or helped the mobs in attacking Sikhs. The learned counsel further submitted that as per the Nanavati Commission Report in Delhi Cantonment area alone 341 Sikhs were killed, 385 houses were damaged or burnt and 110 shops were looted or burnt with respect of which about 150 complaints were filed later on by the persons affected. The learned counsel further submitted that the Nanavati Commission Report observes that no separate cases were registered on the basis of these complaints. Mr. Dewan, learned counsel further submitted that Nanavati Commission Report observes that only 5 FIRs were recorded by the police. The learned counsel further submitted that the Nanavati Commission Report clearly states that Sub Inspector Ramesh Singh Rana who was in-charge of Badarpur area has stated that even when he had reported the situation in his area was grave and was out of control, Mr. Chandra Prakash, DCP of the area (plaintiff herein) told him to keep restraint and not to use firearms.
56. Mr. Shashank Dewan, the learned counsel for the defendant No. 1 further submitted that the Nanavati Commission Report observed and held the various police officers including, Chandra Prakash, DCP who Page No. 37/107 was heading the south district did not perform their duties properly and action by way of departmental enquiry was initiated against each of them. The learned counsel further submitted that though the Nanavati Commission Report concludes on the note that it would now be futile to initiate any criminal action against them, as the other persons accused of having committed the actual acts of killing or looting have already been tried and acquitted in most of the cases.16
57. The learned counsel for the defendant No. 1 concluded his arguments on note that not only the plaintiff has failed to prove in whose eyes he had been defamed but also no case for defamation is made out as the defendant No. 1 has rightly pleaded and proved the defence of justification of truth. The learned counsel submitted that the suit preferred by the plaintiff be dismissed with exemplary costs.
58. Mr. Anujay Tiwari, learned counsel for the defendant No. 2 advanced his arguments against the plaintiff's claim as being untenable and without any basis. The learned counsel for the defendant No. 2 submitted that the alleged defamatory statement under no account can be considered defamatory, as not only the defendant No. 2 was indicted by the inquiry commission but also the defendant No. 2 had narrated the truth. The learned counsel for defendant No. 2 submitted that it is true that the plaintiff did not allow him to open fire.
59. The learned counsel for defendant No. 2 further submitted that the submissions advanced by the learned counsel for the plaintiff that 16 See Nanavati Commission Report, p. 163-164, Vol.-I Page No. 38/107 the defendant No. 2 did not step into the witness box is also without any basis, as it is the plaintiff who has to prove its own case. The learned counsel further submitted that the defendant No. 2 is not bound to lead any negative evidence.
60. The learned counsel for the defendant No. 2 further submitted that the plaintiff has failed to prove his case, as he did not prove the wireless communications. The learned counsel for the defendant No. 2 read out the testimony of PW2 recorded on 19.05.2016. The learned counsel submitted that the defendant No. 2 did not defame the plaintiff.
61. Mr. Tiwari, learned counsel for the defendant No. 2 further submitted that the defendant No. 2 consistently maintained his defence before various commissions, superiors and enquiries undertaken against them. The learned counsel further submitted that the defendant No. 2 did not give any interview to press, media, et cetera and it is wholly incorrect on the part of the plaintiff to allege malice.
62. The learned counsel for defendant No. 2 further submitted that all what defendant No. 2 did was, he had a private conversation and was not at all aware about the sting operation, thus no imputations can be attributable to defendant No. 2. The learned counsel for defendant No. 2 further submitted that his entire communication with the person/reporter was in Hindi language and not in English. The learned counsel further submitted that the plaintiff has failed to summon the reporter, who undertook the sting operation.
Page No. 39/10763. Lastly, the learned counsel for defendant No. 2 submitted that as per the Nanavati Commission Report, the largest violence occurred in the area under the jurisdiction of the plaintiff and the inaction on part of the police has been observed in the aforesaid report. The learned counsel submitted that the plaintiff has failed to prove that he has been defamed and the damages sought by the plaintiff are nothing but a figment of his imagination and based on a weakling of circumstantial evidence.
64. Mr. Babu Lal, learned counsel for the plaintiff rejoined his arguments and submitted that the certificate under Section 65B of the Indian Evidence Act, 1872 is in accordance with law and no objection to mode of proof had been taken by the defendants during the cross- examination of the plaintiff. Learned counsel further submitted that such an objection at this stage is impermissible in the eyes of law.
65. The learned counsel for the plaintiff submitted the plaintiff is fighting for his honour, for vindication and not for damages. The learned counsel for the plaintiff placed reliance upon the judgement passed by the Apex Court in Subramanian Swamy v. Union of India17 and read out paragraph Nos. 20 - 23 of the judgment to elaborate on meaning of 'defamation' and concept of reputation.
66. With regard to the arguments advanced by the learned counsel for defendant No. 1 on the maintainability of the suit for want of territorial jurisdiction, Mr. Babu Lal, learned counsel for the plaintiff submitted 17 AIR 2016 SC 2728 Page No. 40/107 that the publication of Times of India is of a wider circulation and the impugned video being published on Internet on the website of the defendant No. 1 and with the plaintiff residing within the jurisdiction of this Court, the plaintiff has rightly invoked the jurisdiction of this Court.
67. As narrated by me in the preceding paragraphs of this judgement about an application moved by the defendant No. 1 seeking permission of the Court to place on record the certified copy of the Nanavati Commission Report inter alia issuance of directions to the plaintiff to give his no objection qua placing of the certified copies of the said report and issuance of summons to the record keeper/concerned person, Ministry of Home Affairs to prove the same. The defendant No.1 having armed themselves with an order dated 30.01.2020 passed by the Hon'ble High Court of Delhi in Aniruddha Bahal v. Dr. Chandra Prakash & Anr.,18 Mr. Shiva Chopra, along with Mr. Shashank Dewan learned counsels for the defendant No. 1 on 31.01.2020 advanced additional arguments.
68. This Court observes that vide order dated 31.01.2020 the attention of the learned counsel for defendant No. 1 was drawn that on 18.12.2019, Mr. Shashank Dewan, Advocate had already advanced submissions on the ground of justification of truth being absolute defence and he even read out the relevant extract and pages of the Nanavati Commission Report along with relevant provisions of the Commission of Inquiry Act, 1952 there was no occasion to re-argue the 18 CM(M) No. 47/2020 date of order 30.01.2020 Page No. 41/107 whole case. However, the request advanced by the learned counsels for the defendant No. 1 was allowed in terms of the order dated 30.01.2020 passed by the Hon'ble High Court of Delhi.
69. Mr. Shiv Chopra, learned counsel for the defendant No. 1 advanced rebuttal arguments and filed the certified copies of the Justice Nanavati Commission of Inquiry (1984 Anti-Sikh Riots) report along with additional written submissions and law reports. 19
70. Mr. Chopra, learned counsel for the defendant No. 1 submitted that the suit preferred by the plaintiff is bad for non-joinder of parties. The learned counsel further submitted that the plaintiff has neither impleaded Bennett, Coleman and Company Ltd., the owner and publisher of the Times of India newspaper nor Cobrapost. The learned counsel further submitted that the plaintiff has failed to prove the awards and recommendation claimed by him.
71. The learned counsel for the defendant No. 1 submitted that as per the averments made in the paragraph No. 6 of the plaint, the cause of action to maintain the present suit against the defendants was founded basis on the impugned article published in Times of India daily newspaper on 22.04.2014 attributable to defendant No. 2 and a sting operation of Cobrapost by defendant No. 1 carried out on 09.05.2011. The learned counsel for the defendant No. 1 submitted that as per plaintiff himself the impugned sting operation was conducted on 09.05.2011 and thus the one-year prescribed period of limitation 19 Vide Order dated 31.01.2020 Page No. 42/107 expired on 08.05.2012 and consequentially the suit preferred by the plaintiff is time-barred.
72. Mr. Chopra, learned counsel for the defendant No. 1 to delve upon his submissions with regard to the suit of the plaintiff being time- barred drew an analogy from a disparaging tweet made by a person X in the year 2010, whereby he defames person Y. The learned counsel for defendant No. 1 further submitted that the cause of action to maintain a suit by person Y against person X would lapse by the year 2011 and in case if there is a retweet of the disparaging tweet by person Z after lapse of one year prescribed period, such a retweet beyond that period cannot be considered defamatory and be attributable to person X to maintain a suit for damages by person Y.
73. The learned counsel for defendant No. 1 further submitted that the plaintiff has failed to lead any evidence to prove circulation of the newspaper within jurisdiction of this Court.
74. The learned counsel for defendant No. 1 further contended that the plaintiff has not proved the very basis of estimation of his damages and thus decree of damages to the tune of ₹15,00,000/- (Rupees Fifteen lakhs only) cannot be passed in favour of the plaintiff on mere asking.
75. The learned counsel for defendant No. 1 submitted that the certificate under Section 65B of the Indian Evidence Act, 1872 filed by the plaintiff to prove the electronic evidence which the plaintiff intends to rely upon, is beyond pleadings. The learned counsel for the defendant No. 1 submitted that not only the certificate is marred by discrepancies Page No. 43/107 with regard to the impugned video being downloaded by the YouTube downloader but also the specifications of computer were neither pleaded nor proved in accordance with law.
76. The learned counsel for the defendant No. 1 further submitted that the reason why the defendant No. 1 did not step into the witness box is because the plaintiff has failed to prove his own case and the defendant No. 1 cannot be forced to lead evidence in negative.
77. Lastly, Mr. Chopra, learned counsel for the defendant No. 1 once again stressed upon the defence of justification of truth by placing reliance upon the Nanavati Commission Report. Mr. Chopra on a parting note did add that the judgment relied upon by the plaintiff in Sewak Ram v. R.K. Karanjiya20 is distinguishable on facts and does not apply to the case at hand.
78. Mr. Babu Lal, learned counsel for the plaintiff in all fairness was permitted to rejoin his arguments and counter the additional arguments advanced by the learned counsel for the defendant No. 1.
79. Mr. Babu Lal, learned counsel for the plaintiff submitted that the plaintiff reiterates his arguments and added that the plaintiff need not prove admitted facts. The learned counsel further submitted that the admitted fact by the defendant No. 1 is that he is the chief editor of Cobrapost, therefore, the arguments of the plaintiff not having impleaded the Cobrapost are self-serving and not fatal to the plaintiff's suit.
20 AIR 1981 SC 1514 Page No. 44/107
80. The learned counsel for the plaintiff submitted there is no dispute about proven facts. The learned counsel for the plaintiff drew attention of the Court to the testimony of Dr. Rajneesh Mohan (PW2) recorded on 24.11.2016 and submitted that his examination-in-chief remains unimpeached by the defendant No. 1, as the learned counsel for the defendant No. 1 did not cross-examine him despite given an opportunity.
81. Mr. Babu Lal, learned counsel for the plaintiff strongly contended the plea of the justification of truth urged by the defendants. The learned counsel submitted that the evidentiary value of Nanavati Commission report in the present case is nil. The learned counsel further submitted that with no evidence against the plaintiff, the plaintiff has been exonerated and on account of the impugned material i.e. defamatory video and defamatory article, the plaintiff has been a victim at the hand of unscrupulous journalist.
82. The learned counsel for the plaintiff further submitted that the very basis of Nanavati Commission Report was the Kusum Lata Mittal Report and against which the plaintiff herein had preferred a suit and the same stands decreed in favour of the plaintiff and against Kusum Lata Mittal and damages of ₹1,00,000/- (Rupees One lakh only) have been awarded to the plaintiff herein by judgement dated 27.02.2016 passed in Dr. Chandra Parakash IPS v. Sh. Ved Marwah, IPS (Retd.) & Ors. - CS No. 219/2013. The learned counsel for plaintiff further submitted that the certified copy of the aforesaid judgement has already been placed on record by the plaintiff in his evidence.
Page No. 45/10783. The learned counsel for the plaintiff submitted that with the defendant No. 1 refusing to publish the version of the plaintiff, the entire act of publishing the defamatory video and defamatory article is marred by malice. The learned counsel for the plaintiff further submitted that it is the duty of publisher to act in good faith and above all it is the moral obligation of the publisher to check facts failing which the publisher/editor always run the risk of being sued in the court of law. The learned counsel for the plaintiff submitted that the defendant No. 1 has failed to lead any evidence to prove due care, enquiry was undertaken by him before publishing the defamatory video. The learned counsel for plaintiff further submitted that the defendant No. 2 has averred in his defence by way of written statement that he was not aware about the conversation being recorded and thus the entire gamut of facts was in the exclusive knowledge of defendant No. 1, who did not step into the witness box to withstand the defence urged by him by the real litmus test of cross examination and thus adverse inference is warranted to be drawn against the defendant No.1.
84. Mr. Babu Lal, learned counsel for the plaintiff concluded his arguments that the suit of the plaintiff be decreed against the defendants and costs of the suit be also awarded to the plaintiff. Reasoning and Findings
85. I, have perused the complete case record, considered and deliberated over the submissions advanced by the learned counsels for the parties. At the outset, I would deal with two legal contentions argued Page No. 46/107 by the learned counsel for the defendant No. 1 though no issue had been framed with regard to the same. The learned counsels for the defendant No. 1 also contended that the suit is bad for misjoinder and non-joinder of parties, as the plaintiff has failed to implead Bennett, Coleman and Company Ltd., the owner and publisher of the Times of India newspaper and Cobrapost as a party to the suit.
86. Mr. Shashank Dewan and Mr. Shiv Chopra, learned counsels for the defendant No. 1 on two separate occasions contended that not only the suit preferred by the plaintiff is barred by law of limitation but also the same is liable to be dismissed for want of territorial jurisdiction, as no cause of action arose within the South West District.
87. The limitation period for compensation for libel and slander is provided as 1 year under Article 75 and 76, respectively under Part VII, First Division - Suit of the Limitation Act, 1963. The learned counsel for the defendant No. 1 argued that the plaintiff has pleaded that the sting operation video was made on 09.05.2011 and the cause of action as per plaintiff arose on 09.05.2011 and thus the suit ought to have been filed within a period of 1 year from 09.05.2011, whereas the plaintiff preferred the plaint on 30.05.2014 and thus the suit is barred by law of limitation.
88. Mr. Chopra, the learned counsel for the defendant No. 1 had also argued that by publication of the impugned news article/report in the Times of India, Delhi Edn., on 22.04.2014, the limitation period with regard to the impugned sting operation video would not be extended.
Page No. 47/107Mr. Chopra, learned counsel for the defendant No. 1 had drawn an analogy of an impugned tweet on Twitter, a social media platform being retweeted beyond a period of 1 year would not extend the limitation period beyond the period of 1 year from the date of publication of the original tweet.
89. On the face of it the arguments advanced by the learned counsels for the defendant No. 1 do appear to be impressive but the same would not non-suit the plaintiff. It is observed from careful reading of the plaint that the plaintiff is aggrieved by the impugned article sullying his reputation by publication in the Times of India, Delhi Edn. on 22.04.2014. It is also observed from the opening paragraph of the impugned article that Cobrapost couldn't get much out of the then commissioner S.C. Tandon and ACP Gautam Kaul. In the second paragraph of the impugned news article/report, the reporter states that TOI - Times of India cannot vouch for the authenticity of the interviews, if they are true they reveal how an entire police force not only failed to act, but colluded with the government of the day to teach Sikhs "a lesson" in one of the worst examples of state-sponsored violence against a religious minority.
90. This Court further observes that it is towards the end that the impugned news article/report has mention of the plaintiff and the defendant No. 2 by their names. It is observed that the impugned news article/report does not mention a word about the date of the sting operation uploaded on the website of Cobrapost. Thus, the analogy of Page No. 48/107 retweeting a disparaging, defamatory tweet does not impress me. It is more than obvious that the plaintiff has hinged his case on the cause of action having arisen from the impugned article published on 22.04.2014 and it is from the impugned article published in Times of India did the plaintiff gain knowledge about the defamatory sting operation video. This Court cannot lose sight that the plaintiff has averred that the defendant No.1 retained the impugned video of the sting operation since 2011 but only chose to make it public in the year of General Elections 2014. From the careful perusal and examination of the impugned news article/report it is observed that the same was published on 22.04.2014. It is also observed that the text of the impugned article does not mention the date of recording(s) of the sting operation, however, the 8 (eight) photographs constituting part of the impugned news article/report have date and time stamps and the one relevant to the present suit is of Rohtas Singh, SHO Delhi Cantt. (defendant No. 2 herein), which has a date and time stamp of "2011.05.09 09.02:03". It is also observed that out of the eight photographs only six have date and time stamps on them, which are also of different dates.
91. I, am not convinced with the contention of the learned counsel for the defendant No. 1 that the period of limitation to file the present suit began from 09.05.2011 and not 22.04.2014. With the plaint in the present case having being filed on 30.05.2014 by the plaintiff, this Court finds and holds that the plaintiff has rightly invoked the Page No. 49/107 jurisdiction of this Court within the prescribed period of 1 year. The suit preferred by the plaintiff is held to be within the prescribed period and the arguments advanced by the defendants are rejected.
92. Now moving on to the second legal challenge flanked by the defendant No. 1 that this Court is not the competent court to decide and adjudicate the dispute amongst the parties and the plaint be dismissed for want of territorial jurisdiction.
93. During the course of arguments on 18.12.2019, the Court did draw attention of Mr. Shashank Dewan, learned counsel for the defendant No. 1 to Section 19 of the Code of Civil Procedure, 1908 (hereinafter "CPC"). Section 19, CPC, reads as under:
"19. Suits for compensation for wrongs to person or movables.-Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the option of the plaintiff in either of the said Courts."
94. The learned counsel for the defendant No. 1 argued that the wrong in a suit for defamation would be done at the place where the publication was made and not at the place where the plaintiff resides.
95. The plaintiff has invoked the jurisdiction of this Court on the plea that the newspaper in which the impugned article was published has wide circulation in Delhi and with the news report being published online and also the video footage of the sting operation published on the website - Cobrapost, the cause of action arose in Delhi.
Page No. 50/10796. This Court observes that the defendants in their respective written statements have not denied that the newspaper Times of India is not published and widely circulated in Delhi. It is observed from the case record that none of the defendants stepped in the witness box, whereas the plaintiff along with 4 (four) witnesses testified to prove his claim.
97. The Hon'ble High Court of Delhi in M/s Frankfinn Management Consultants v. Mr. Subhash Motwani & Anr.,21 a suit for damages and defamation dealt with a similar challenge waylaid by the defendants on ground of territorial jurisdiction. His Lordship, Mr. Rajiv Sahai Endlaw, J. in a very erudite manner crystallised the position in law and held that the plaintiff cannot be non-suited on this ground.
"17. The wrong within the meaning of Section 19 of the CPC in an action for defamation is done by the publication. The defendants are confusing publication in the sense of printing, with publication as in the case of libel. The publication in the sense of a libel is not the mechanical act of printing of the magazine but is of communication of the libelous article to at least one person other than the plaintiff or the defendant. In this regard also see Aley Ahmed Abdi v Tribhuvan Nath Seth 1979 All. LJ 542. If the magazine, as aforesaid, has a circulation at Delhi, then it cannot be said that the wrong would not be done to the plaintiff at Delhi and thus the courts at Delhi would have jurisdiction under Section 19 of the Act. A Division Bench in T.N. Seshan v All India Dravida Munnetira Kazahagam 1996 AlHC 4283(AP) has taken the same view. Even if the test of Section 20 of the CPC were to be applied, 21 CS(OS) No. 367/2002 date of decision 12.09.2008 Page No. 51/107 even then the cause of action in part at least would accrue in Delhi. A Single Judge of the High Court of Bombay in the The State of Maharashtra v. Sarvodaya Industries AIR 1975 Bombay 197 has held that the phrase wrong done in Section 19 would clearly take in not only the initial action complained of but its result and effect also and Section 19 is wide enough to take in those places where the plaintiff actually suffered the loss because of the alleged wrongful act. It was further held that the court within whose local jurisdiction damage was caused or suffered or sustained, would clearly answer the requirements of Section 19 for the purposes of the suits mentioned therein. I respectfully concur with the said view and unless Section 19 of the CPC is so interpreted, the purpose thereof would be defeated. Similarly, State of Meghalaya & Ors v Jyotsna Das AIR 1991 Gauhati 96 also held that wrong done includes and covers the effect of the act. The counsel for the defendants has relied upon Rashtriya Mahila Kosh v The Dale View 2007 IV AD (Delhi) 593 to address the principle of forum non conveniens. With respect, if under the CPC the court has jurisdiction, I find it hard to hold that on the doctrine in international law of forum non conveniens the plaintiff can be non suited. I, therefore, decide issue No.1 in favour of the plaintiff and against the defendants."
[Emphasis added by underlining and highlighting of text]
98. In view of the above, this Court observes that the plaintiff has rightly invoked the jurisdiction of this Court and the suit for damages on account of defamation by the defendants is not to be dismissed for want of territorial jurisdiction.
Page No. 52/10799. On the third wave of attack on the maintainability of the suit preferred by the plaintiff being bad for misjoinder and non-joinder of parties, this Court observes that Order I, Rule 3, CPC, provides who are the necessary parties in a suit. A person who is not a party in the proceeding is not bound by any judgment or decree as the order against him is in violation of the principles of natural justice. There may be a party - necessary, proper and/or improper, therefore the concept of joinder, non-joinder and misjoinder of parties has always been very relevant.
100. A Constitution Bench of the Supreme Court in Udit Narain Singh Malpaharia v. Member, Board of Revenue Bihar 22 has explained as who are the necessary parties and without whom the suit shall not be maintainable. A necessary party is one without whom no order can be made effectively. A proper party is one whose presence is necessary for a complete and final decision. Suit fails for non-joinder of necessary parties because the question of joinder of parties involves joinder of causes of action.
101. The object and legal principle of Order I, Rule 10, CPC is to discourage contents on technical pleas and to save honest and bona fide claimants from being non-suited. The main object behind striking out or adding parties is to bring before the Court all the persons interested in a suit so that all the disputes may be finally determined in the presence of all the parties. It also enables the Court to adjudicate 22 AIR 1963 SC 786 Page No. 53/107 effectually and completely upon and settle all the questions involved in a suit without much delay, inconvenience and expense. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings.
102. Order I, Rule 10, CPC, is not merely a procedural formality but is essentially a matter of substance and considerable significance.
103. The Court must keep two principles in mind while exercising its power under Order I, Rule 10, CPC:
(i) when he ought to have been joined as plaintiff or defendant, and is not so joined, or
(ii) when, without his presence, the questions in the suit cannot be completely decided.
104. The power of the Court to add, substitute or strike out parties to a suit is discretionary, to be exercised in the light of all the facts and circumstances of a case - See Razia Begum v. Anwar Begum.23 The power may not be exercised merely to avoid fresh litigation - See Mohan Raj v. Surendra Kumar Taparia.24 Above all, the Court must not forget that a plaintiff is the dominus litus and thus it is upto him to choose his opponent, from whom he claims relief, and normally a Court must not compel him to fight a person whom he does not want to fight and from whom he claims no relief.
23 AIR 1958 SC 886 24 AIR 1969 SC 677 Page No. 54/107
105. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right.
106. In the case at hand, the impugned news article/report is published in the newspaper Times of India, Delhi Edn., which is owned by a legal entity Bennett, Coleman and Company Ltd. No doubt that the plaintiff has no impleaded Bennett, Coleman and Company Ltd., as a defendant in his suit but the plaintiff did implead then Editor of Times of India as a defendant No. 3, namely, Arindem Sen Gupta, who died during the pendency of the present legal proceedings. The plaintiff of his own accord recorded his statement that as he had preferred a suit against Arindem Sen Gupta in his personal capacity, let the suit be abated against him. It is observed that the cause of action against Arindem Sen Gupta abated on account of his demise - See Section 306 of the Indian Succession Act, 1925.
107. The plaintiff has neither impleaded Cobrapost nor the person, entity who owns, operates Cobrapost other than Aniruddha Bahal (defendant No. 1 herein). However, as per the averments made in the plaint it is defendant No. 1 who runs the show at Cobrapost and he is the mind behind the impugned sting operation video, which has not only disrobed him of his reputation but also sullied him publicly. This Court is of the considered view, it is the plaintiff in whom the right vests Page No. 55/107 to choose, who his adversaries shall be. The next question which needs to be answered, would the plaintiff be entitled to get the relief sought by him against the adversaries brought by him to Court. The answer to this question would be in affirmative, as long as the relief sought by the plaintiff can be granted to the plaintiff against his chosen rivals and the exercise of his right to leave behind the other persons against whom he did not press his claim does not make it impossible for allowing the relief.
108. As per the above observations, this Court holds that the suit preferred by the plaintiff in its present form is not bad for misjoinder and non-joinder of parties and certainly the plaintiff cannot be non- suited on this ground. The arguments of the learned counsel for the defendant No. 1 is rejected on this count also.
109. The issue-wise findings ensue in the following paragraphs of this judgment.
Issue No. 1Whether the News item dt, April 22, 2014 was published in The Times of India by the Defendant No. 3?
110. The onus to prove issue No. 1 was saddled upon the plaintiff. The defendant No. 3, namely, Arindem Sen Gupta was stated to be the editor of the Times of India, Delhi Edn. during the time when the impugned article was published on 22.04.2014. It is observed from perusal of the case record that the defendant No. 3 died during the pendency of the present legal proceedings. The plaintiff on 20.05.2016 recorded his Page No. 56/107 statement on oath that as per news report in Hindustan Times, the defendant No. 2 has died and as the plaintiff had preferred the present suit personally against him, the suit may be abated. Accordingly, by order dated 20.05.2016 the name of the defendant No. 3 was deleted from the array of parties. It is also observed that on 20.05.2016 the trial had already begun and there only remained two defendants in the suit.
111. This Court observes and finds that the plaintiff has led no evidence to prove the fact that by whom the impugned news article/report was published in the Times of India, Delhi Edn. on 22.04.2014. Thus, the issue No. 1 is decided against the plaintiff and in favour of the defendants.
Issue No.2 Whether the contents of the sting operation were published on Cobrapost Website by the defendant NOI?
112. The onus to prove issue No. 2 was saddled upon the plaintiff. The plaintiff has been aggrieved by an impugned article published in the newspaper, Times of India, Delhi Edn. and a video of a sting operation stated to be published on the website of Cobrapost.
113. On perusal of the plaint it is observed that the plaintiff has neither averred and stated the address of the website of Cobrapost nor the hyperlink of the webpage on which the impugned video of the sting operation was uploaded. It is observed that the plaintiff has only filed a compact disc containing the video footage of sting operation. It is Page No. 57/107 further observed that no transcript of the entire video footage has been tendered in evidence by the plaintiff.
114. The plaintiff did examine his son, namely, Dr. Rajneesh Mohan Siwan as PW2 to prove that the video was downloaded by him from the website of Cobrapost. It is further observed that the examination-in- chief of PW2 does not state the date when, how and by what method he downloaded the video of the sting operation from the website of Cobrapost. All that PW2 stated during his cross-examination was that he downloaded the sting operation video using YouTube downloader. Whereas, on accessing the compact disc (Ex.PW1/14) it is observed that there are 10 files containing video clippings.
115. This Court observes that the plaintiff has lead no evidence to prove the ownership of domain name of www.cobrapost.com or any other domain name owned by Cobrapost and/or the defendant No. 1.
116. In Anvar. P.V. v. P.K. Basheer,25 the Apex Court categorically observed that any electronic evidence must mandatorily be accompanied with a certificate under Section 65B of the Indian Evidence Act, 1872. The relevant extracts for the landmark judgment are reproduced as under:
"15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
25 (2014) 10 SCC 473 Page No. 58/107
(a) There must be certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record.
(d) The certificate must deal with the applicable conditions mentioned Under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, Page No. 59/107 resort can be made to Section 45-A - opinion of Examiner of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law stands in India."
[Emphasis added by underlining]
117. The mandatory requirement of an electronic evidence being supported by a Section 65B certificate has been recently upheld by the Hon'ble Supreme Court in Harpal Singh v. State of Punjab, 26 the relevant extract of the judgment reads as under:
"56. ... ... As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held inadmissible in evidence.
This Court in Anvar P.V. has held that in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electronic record in the form of secondary evidence cannot be admitted in evidence unless the requirement of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above."
26 (2017) 1 SCC 734 Page No. 60/107
118. Now coming to the certificate under Section 65B of the Indian Evidence Act, 1872 though tendered by plaintiff in evidence on 08.04.2016 is signed by Dr. Rajneesh Mohan Siwan - See Ex.PW1/15. The certificate - Ex.PW1/15 under Section 65B of the Indian Evidence Act, 1872 filed by the plaintiff reads as under:
"IN THE COURT OF SHRI LAL SINGH A.D.J. DWARKA COURTS, NEW DELHI Civil Suit No. 37 of 2014 IN THE MATTER OF:
DR. CHANDRA PRAKASH PLAINTIFF
VERSUS
SHRI.ANIRUDDHA BAHAL & OTHERS
DEFENDANTS
CERTIFICATE U/S 65B OF THE INDIAN
EVIDENCE ACT, 1872
It is certified that the electronic document/ CD produced by the Plaintiff Dr.Chandra Prakash has been a true copy of the original material saved in my computer in my close supervision & safe custody. The facts mentioned in the contents of the electronic document are true as per my knowledge.
Information contained in the above electronic document/CD is downloaded through youtube downloader from Cobrapost website in the SONY VAIO Laptop on 05/05/2015 and on 06/05/2014 and now stored in my Dell Page No. 61/107 Core2duo PC which is in my possession and is accessed only by my family members. Computers and servers were in working condition during the time of process of storage and retrieval from the server and making of CD's.
Dated - March 14, 2015 At New Delhi Sd/-
Dr. Rajneesh Mohan Siwan Ex.PW1/15 AD&SJ 08/04/2016"
119. On examination of the certificate under Section 65B(4) of the Indian Evidence Act, 1872, this Court finds that the same does meet the requirements culled out in paragraph No. 15(a) to (c) of the judgment Anvar. P.V. v. P.K. Basheer,27 however, with regard to the requirement of the complying with the conditions of Section 65B(2) of the Evidence Act, 1872 the certificate is silent.
120. The electronic evidence in addition to the above legal requirement is also required to satisfy the tests laid down by the Apex Court in Ram Singh v. Col. Ram Singh,28 which are as follows:
"32. 1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will 27 (2014) 10 SCC 473 28 (1985) Supp SCC 611 Page No. 62/107 require very strict proof to determine whether or not it was really the voice of the speaker.
2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
4) The statement must be relevant according to the rules of Evidence Act.
5) The recorded cassette must be carefully sealed and kept in safe or official custody.
6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
121. In the case at hand, the impugned video of the sting operation after the introduction of almost 1 minute, a gentleman stated to Rohtas Singh is having a conversation with another gentleman, whose face is not disclosed in the entire video footage. The impugned video of the sting operation does have a female voice in the backdrop.
122. This Court observes that the plaintiff has neither pleaded nor averred in his plaint how the impugned video footage grabbed from the website of Cobrapost came to be recorded / downloaded. It is observed that from the case record and the order sheet dated 23.03.2015 that the plaintiff on 18.03.2015 moved an application under Section 151 CPC Page No. 63/107 seeking leave of the Court for production of additional documents and a compact disc. The application moved by the plaintiff seeking leave of the Court to place on record additional documents and compact disc was allowed by order dated 02.11.2015. This Court observes that the plaintiff has not led any evidence to prove his claim of the offensive video published on the website of Cobrapost. It is further observed that the plaintiff has not led any evidence to prove the webserver on which the defendant No. 1's website is hosted. In this advanced technological era, this Court cannot lose sight of the fact that any digital data, particularly, online data of webpages and websites does leave an online footprint and it would not have been a difficult endeavour for the plaintiff to prove the publication (read hosting) of the sting operation video on the website of Cobrapost, provided the plaintiff took necessary steps and rowed his boat in that direction.
123. Accordingly, this Court finds that the plaintiff has failed to shift the onus of issue No. 2 casted upon and the issue No. 2 is answered against the plaintiff and in favour of the defendants.
Issue No.3, 4 and 5124. The issue Nos. 3, 4 and 5 are intertwined issues and the same are being taken up concurrently in the following paragraph. The issue Nos. 3, 4 and 5 framed on 15.01.2016 read as under:
(i) Issue No. 3: Whether the contents of News Item mentioned in issue No. 1 are defamatory of the plaintiff?Page No. 64/107
(ii) Issue No. 4: Whether the contents of sting operation posted on website of Cobrapost are defamatory of the plaintiff?
(iii) Issue No. 5: Whether the statements made by the defendant No. 2 in sting operation in question are defamatory of the plaintiff?
125. The onus to prove issue Nos. 3, 4 and 5 was also saddled upon the plaintiff. The case urged by the plaintiff is that he retired as a senior police officer from the Indian Police Services after having served for over 30 years. It is averred by the plaintiff that his tenure of service stretched over the length and breadth of Delhi, Andaman & Nicobar Islands and Arunachal Pradesh. The plaintiff is aggrieved by a sting operation undertaken by the defendant No. 1 recording the statements of the defendant No. 2, who sullied the reputation of the plaintiff by casting blame on him for all the inaction during the infamous Sikh Riots 1984. The plaintiff is primarily aggrieved from the impugned news article/report published on 22.04.2014 in the Times of India, Delhi Edn., where not only the plaintiff has been named but also it is mentioned that the same is on the basis of a sting operation of Cobrapost by the defendant No. 1 carried out on 09.05.2011.
126. The impugned article published on 22.04.2014 at page No. 2 in the Times of India, Delhi Edn.29 is reproduced as under:
29 Ex.PW1/1 Page No. 65/107 Page No. 66/107127. The text of the impugned article is reproduced in verbatim as under:
"April 22 2014 : The Times of India (Delhi) 'Seniors didn't allow cops to open fire' SHOs Accuse Then Police Chief Tandon Of Inaction, Say His Head Should Have Rolled EXPLOSIVE ADMISSIONS ON 1984 RIOTS BY FORMER COPS TIMES NEWS NETWORK New Delhi: A sting operation by Cobrapost couldn't get much out of the then commissioner S C Tandon and ACP Gautam Kaul. While Tandon parried all the questions, Kaul claimed that on one occasion when he went to check out reports of rioting near Gurdwara Rakab Ganj, he had to flee since he was alone in front of a hostile mob.
While TOI cannot vouch for the authenticity of the interviews, if they are true they reveal how an entire police force not only failed to act, but colluded with the government of the day to teach Sikhs "a lesson" in one of the worst examples of state-sponsored violence against a religious minority.
The SHOs interviewed were Shoorveer Singh Tyagi of Kalyanpuri, Rohtas Singh of Delhi Cantonment, S N Bhaskar of Krishna Nagar, O P Yadav of Srinivaspuri and Jaipal Singh of Mehrauli. Amreek Singh Bhullar, who was SHO of Patel Nagar at the time, was also interviewed. He had submitted an affidavit to an inquiry commission accusing some local leaders of not just Page No. 67/107 participating in the riots but whipping up mobs into a frenzy.
Among the more shocking revelations is that messages were broadcast directing the police not to take action against rioters shouting slogans of 'Indira Gandhi zindabad' and that bodies of victims were in some cases dumped far away from the scene of the rioting to reduce the official toll of the riots.
According to some, while news of arson and rioting poured into the police control rooms, only 2% of the messages were recorded. Later, entries in police logbooks were changed to get rid of evidence of inaction on the part of senior officers.
Senior officers did not allow subordinates to open fire on rioters. Even the fire brigade refused to move to areas where cases of arson had been reported. The police also did not allow the victims of rioting to file FIRs or when they did file FIRs, clubbed many cases of murder and arson from disparate places in a single FIR.
At least three of the SHOs castigated Tandon for mismanagement. Tyagi, for instance, insisted that, "knowingly or unknowingly, he (Tandon) was under the influence of the government. He mismanaged in the beginning and in the first two days the situation went out of control."
Yadav too accused Tandon of not providing leadership to the force, while Bhaskar said that instead of singling out some SHOs, the police chief's head should have rolled.
The Ranganath Mishra Commission and the Kapur Kusum Mittal Committee, both set up to inquire into the riots, held Tandon responsible for breakdown of law and order. When the Cobrapost reporter met Tandon, he Page No. 68/107 refused to comment, saying anything said by him could create a controversy in poll season.
Bhaskar maintained that messages for reinforcement sent by him were ignored by senior officials. Bhullar accused additional CP Hukam Chand Jatav of refusing to act even when the press informed him about murders and arson taking place. According to Bhullar, Jatav was in the control room in Karol Bagh when a reporter passed on the information to him, but he responded by saying he was in the control room and no such thing had happened. "He knew everything lekin wahan se move hi nahi kiya," claimed Bhullar.
Rohtas Singh, one of the officers indicted by the inquiry commissions, maintained that DCP Chandra Prakash did not allow him to open fire on the rampaging mobs. According to Singh, "he told me, and gave me in writing, that Indira Gandhi's murder is big enough an event. Now should you make an even bigger event by opening fire?"
Singh insisted that he could have substantiated his charges if only wireless messages had been faithfully recorded. "If those messages had been recorded, I could have proved many things, but not even two 2% were recorded in the log book of the control room," he said in Hindi, alleging also that Chandra Prakash had changed messages that would indict him.
Singh also admits to the force having got communal. "I have no hesitation saying that our policemen who were drawn from the local men too had become communal- minded," he candidly observed.
The interviews also reveal how the police tried to put a spoke in the wheels of justice once the rioting abated following the intervention of the army after three days.Page No. 69/107
First, they did not register cases and when they did, they clubbed disparate cases in one FIR.
According to Bhullar, "The police did not register cases, instead they tried to suppress cases. They knew there were huge riots in their areas, so they tried to minimize, even picked up corpses and dumped them in Sultanpuri, to save their jobs."
Messages were broadcast directing police not to take action against rioters and that bodies of victims were in some cases dumped far away from the scene of the rioting [email protected] [Emphasis added by underlining and highlighting of text]
128. With regard to the impugned video stated to be published on the website of Cobrapost, it has been held in the preceding issue i.e. issue No. 2, the plaintiff has failed to prove that the impugned video of the sting operation was published on the website of Cobrapost. The plaintiff has placed on record and tendered in his evidence the compact disc (Ex.PW1/14) containing the sting operation. The impugned video of the sting operation was played in the open courtroom during the course of arguments.
129. This Court observes that the compact disc (Ex.PW1/14) containing the impugned video has one folder titled as "Cobra Post Sting", which contains ten (10) files and the relevant file containing the defamatory video of Rohtas Singh (defendant No. 2) is titled/saved as Page No. 70/107 "Chapter 84 Case 2, Rohtas Singh". The video footage file is in a .avi format and file size of 142 MB. The total playtime of the video footage is 08:26 (Eight mins and twenty six seconds). As per the file properties accessed by me, the file is stated to be created on 05.05.2014 at 12:35:09. It is observed that neither the plaintiff has stated the above particulars of the impugned video in his plaint nor in his examination- in-chief. It is also observed that the plaintiff has not even filed the transcript of the impugned video footage.
130. As observed above the impugned video footage by which the plaintiff is aggrieved is of 08mins26secs of playtime. After having seen the video, my recollection of the same is that for first 50 seconds there is an introductory message having mention of the riots and message by erstwhile Prime Minister Indira Gandhi on unity, Mr. Rahul Gandhi, grandson of Indira Gandhi making a statement about certain Congress leaders being involved in the carnage, Mr. H.S Phoolka, Sr. Advocate, who championed the cause of victims the riots and the society at large and a woman talking about the injustice meted out to Sikh community.
131. At 51st second, a house with a male voice and the video footage shows camera pointed towards the ceiling. A female voice at 56th second introduces Rohtas Singh as SHO Delhi Cantonment during the 1984 carnage. The female voice continues by stating that major penalty action was suggested by Kusum Lata Mittal Report against Rohtas Singh for dereliction of duty. Rohtas Singh retired from service in 2003. The female voice continues speaking, Nanavati Commission Report Page No. 71/107 noted action against Rohtas Singh for negligence in performance of his duties.
132. It was observed that the video does have tickers coming in with time - Chapter 84 and COBRAPOST.COM Real Life Reporting on top left side of the secree. At 04mins 50secs, Rohtas Singh is chatting with a male person. At 07mins 28secs, there is mention of change of log book. Rohtas Singh says even DCP Chandra Prakash was patrolling the area, if he was accused of not firing his weapon, why did he not resort to firing.
133. Towards the end of the video footage, female voice takes over and states that Rohtas Singh said that dereliction of duty merged into illegality when his supervisor changed the log book to eliminate all evidence. This is the bloody part of 30 years ago still haunting the present. At 08mins 15secs, the impugned video footage has an audo voice, This is Chapter 84 (door opens) with sombre music playing in the backdrop.
134. The preceding paragraphs reveal and portray the impugned news article/report and the impugned video of the sting operation for better understanding and adjudication of the dispute at hand.
135. Although, the term 'plaint' has not been defined in the Code of Civil Procedure, 1908 it may be described as a complaint or a form of action. It is a pleading of the plaintiff. The rights of the parties to a suit must be determined on the date of the filing of the plaint.
Page No. 72/107136. A 'pleading' means a plaint or a written statement. The underlying object of pleadings is to ascertain the real dispute between the parties, to narrow down the areas of conflict, to make each side aware of the questions which are to be argued, to preclude one party from taking the other by surprise and to prevent miscarriage of justice.
137. The first basic principle of pleadings is that they should contain facts and only facts, and not law. The duty of a party or his pleader is to set out the facts upon which he relies and not the legal inference to be drawn from them, as it for the Courts to apply the law to the stated facts. However, the maintainability of a suit or an appeal is a point of law and need to be pleaded.
138. The second basic rule of pleadings is that they should state material facts only. 'Material facts' means all facts upon which the plaintiff's cause of action or the defendant's defence depends. Material facts differ from the particulars of a case. While material facts are the primary and basic facts which must be pleaded by a party in support of the case set up by him, since in the absence of pleadings a party cannot be permitted to lead evidence and failure to state material facts will result in the dismissal of a suit. The distinction between material facts and particulars is one of degree - See Mohan Rawale v. Damodar Tatyaba alias Dadasaheb.30 Whether a particular fact is a material fact, 30 (1994) 2 SCC 392 Page No. 73/107 and hence must be pleaded, depends on the facts and circumstances of the case - See Udhav Singh v. Madhav Rao Scindia.31
139. The third important rule is that every pleading must contain only a statement of the material facts on which the party relies (fact probanda) and not the evidence by which those material facts are to be proved (facta probantia). However, what are material facts and what is evidence depends on the facts and circumstances of every case - See Mohan Rawale v. Damodar Tatyaba alias Dadasaheb.32
140. Apart from the above stated basis rules of pleadings other rules of pleadings dealing with special situations, as relevant for the case at hand are as follows:
(i) In cases where a party relies on misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in forms provided in the CPC, particulars, with dates and items of necessary, must be stated in the pleading. Although what particulars are to be stated depends on the facts of each case, as a general rule as much certainty and particularity must be inserted as is reasonable having regard to the circumstances and to the nature of the acts.
31 (1977) 1 SCC 511 32 (1994) 2 SCC 392 Page No. 74/107
(ii) Where the contents of a document are material, it is sufficient to state in the pleadings their effect briefly without setting out the whole or any part of it unless the precise words of the document are material.
(iii) Where it is material to allege malice, fraudulent intention, knowledge or any other condition of the mind of a person is sufficient to allege it as a fact without setting out the circumstances from which it is to be inferred are material.
141. That said, pleadings must be interpreted liberally with emphasis being paid to the substance of the matter rather than to the form of the pleadings - See Ram Sarup Gupta (deceased) by LRs v. Bishun Narain Inter College.33 The pleadings must be read as a whole and no part of a pleading ought to be interpreted out of context and in isolation
- See Udhav Singh v. Madhav Rao Scindia.34
142. The Black's Law Dictionary defines 'defamation' as follows:
"The act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement's falsity and the defendant's fault."
143. In terms of a definition of definition that is specific to its nature as a tort, we refer to the definition given in Salmond: 35 33 (1987) 2 SCC 555 34 (1977) 1 SCC 511 35 See RFV Heuston - Salmond on the Law of Torts, 17th Edn., 1977, p 138 Page No. 75/107 "The wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification. That person must be in being. Hence not only does an action of defamation not serve for or against the estate f a deceased person, but a statement about a deceased or unborn person is not actionable at the suit of his relatives, however great their pain and distress, unless the statement is in some way defamatory of them."
144. I, deem appropriate to reproduce the relevant extract from the Halsbury's Laws of India36 with regard to defamation, which reads, as under:
"[285.298] Introduction The concern of the law of defamation is the protection of individual reputation. In past, claims stemmed mainly from spoken words. A defamatory act essentially is now generally understood as an attack on the reputation of a person either by written or spoken words, or by any other means of communication, for example by means of a caricature, an effigy, advertisement, or film. General allegations affecting the reputation of a class of people, humiliating a person or members of a class of people as regards character, profession or learning, connecting a person with grave sins or offences have all been held to be defamatory. Even if certain facts were true, no justification may be given to justify injuring another. Attempts have been made to legislate on the matter of reconciling this end with the competing demands for freedom of speech and free speech. In most jurisdictions the existing law is a mixture of statute and common law.
Right of reputation is acknowledged as an inherent personal right of every person. It is a jus in rem, an absolute right, good against anyone. A man's reputation is his property, and, it has been stated that it comprises more valuable property than any other property. That is why it 36 Halsbury's Laws of India, Vol. 35, Second Edn.Page No. 76/107
has been said to a person of high social esteem, dishonour will exceed death and degree of suffering owing to loss of reputation far exceeds suffering occasioned by loss of property. Thus, any statement or representation which exposes a person to contempt, hatred or ridicule, tends to injure him in his profession or trade, or causes him to be shunned or avoided by neighbours in defamatory."37
145. Defamation is not limited to the casting of aspersions on the private character of an individual and his reputation for honour, honesty or integrity, it also embraces disparagement of his reputation in trade, business, profession or office. However, defamation is distinct from some other wrongful acts which may injure reputation such as say unlawful arrest or malicious prosecution. It is not necessary that the offending words act to excite feelings of disapprobation towards the defamed, rather, it is sufficient that they cause him to be shunned and avoided.
146. The question of whether a statement is defamatory38 includes a question of whether a 'right thinking person' would see the statement as such, where it appears to be sufficient that the allegation stirs up adverse feelings among a substantial and respectable group of the community. Publication is the gist of the wrong of defamation and it must be made to a person or people other than the defamed. 39 In order to establish an action for libel, the statement complained of should be 37 Introduction to Defamation, para 285.298, Halsbury's Laws of India, Vol. 35, Second Edn. 38 See Paras Dass s/o Jugal Kishore v. Paras Dass s/o Baij Nath - (1969) Del LT 241 39 See M.C. Verghese v. T.J. Ponnan - AIR 1970 SC 1876 Page No. 77/107 false, should be made in a written form, should contain defamatory content and should be published.
147. The wrong of 'defamation' may be committed either through printing, writing or its equivalent, conveyed through a visual communication or by way of speech. The term 'libel' is used for defamation by writing and 'slander' for defamation by speech. In short, defamation is either by slander - words, speech or by libel - written statement. In order to establish an action for libel, the statement complained of should be false, should be made in a written form, should contain defamatory content and should be published.
148. Publication is the gist of the wrong of defamation and it must be made to a person or people other than the defamed - See MJ Zaharia v. TM Mohammed.40 Mere speaking or writing of defamatory words does not suffice in an action for defamation there must be evidence of publication. Communication of defamatory material to the plaintiff is not actionable because defamation is injury to the reputation of a person and reputation is made up of the estimation in which others hold the plaintiff and not the plaintiff's opinion of himself.
149. Even if newspapers owe a duty to the readers to publish any and every item of news that may interest them, this is not such a duty as makes every communication in the paper relating to a matter of public interest a privilege one, as newspapers do not have a special right to make unfair comments or to make imputations upon a person's 40 (1990) 3 SCC 396 Page No. 78/107 character or imputations upon or in respect of a person's profession or calling. In short, what may be of interest to the public is not necessarily a matter in public interest. A journalist owes a duty and to his subject to the public to ensure that his facts are accurate. The proprietor of the newspaper is liable for any libel which appears in its columns, even if the publication is made in his absence, without his knowledge or even contrary to his orders - See Dina Nath v. Sayad Habib.41
150. To sum up, in order to establish an action for libel, the statement complained of should be false, should made in the written form, should contain defamatory content, should be defamatory in nature i.e. exposes the person to ridicule, contempt, hatred, cause him to be shunned, avoided, ostracised, should be published and the same shall withstand the test on being read as a whole and given its natural or ordinary meaning.
151. If a person is proved to have stated that which he knew to be false, no further enquiry is required at this point that he was malicious, as it can be assumed. The test of whether a statement contains defamatory material is whether the words would tend to lower the plaintiff in the estimation of right-thinking members of society generally. It is not necessary to prove the actual loss of reputation, rather, it is sufficient to establish that the defamatory statements made could damage one's reputation. If the words are false and defamatory the law implies malice. The intention or motive with which the words are used is immaterial 41 AIR 1929 Lah 129 Page No. 79/107 and, if the matter complained of does refer all would be deemed by reasonable people to refer to the plaintiff, an action may be maintained. It is not necessary that all the world should understand the libel, it is sufficient if those who know the plaintiff can make out the libel and that the plaintiff is the subject of the libel.
152. The three broad defences against an action for defamation are justification, fair comment and privilege. The exceptions to defamation are comment; comment must be fair; requirement of public interest; privilege - absolute privilege, qualified privilege; parliamentary proceedings; judicial proceedings and statement should be without malice.
153. In a civil action for defamation, truth of the defamatory matter is a complete defence. The defence cannot be availed if the defendant is not able to prove the truth of the facts, as a large assertion or truth of the words is a repetition of the libel and not the justification of it. The onus is on the defendant to prove that the statement in question is true in substance and effect in order to avail him of the defence of justification. In a plea of justification, it is not sufficient for the defendant to show that he truly made the statement in question or truly held the opinion, the defendant must show that the opinion and statement were true and accurate in themselves.
154. Truth is a complete defence to a civil action for libel. The burden of proof of the defence of justification lies on the defendant. All defamatory words are presumed to be false, but the defendant can rebut Page No. 80/107 the presumption. Even if the defendant has given evidence in his own favour the burden of proving truth would still lie on the defendant and would not shift to the plaintiff. In order to succeed upon the defence of justification, the defendant in the libel action have to prove that the whole of the defamatory material is substantially true.
155. Malice in the law of defamation is used in two senses. In one sense it denotes merely the absence of lawful excuse of privileged occasion. In another sense it denotes ill-will, evil motive, intention to injure or wanton disregard of the rights of others.
156. The position in law is well settled that defamation does not happen in vacuum, one is always defamed in the eyes of other. It is observed that the plaint preferred by the plaintiff has neither averred nor mentioned the name of any independent person, in whose eyes the plaintiff was defamed by the alleged defamatory disparaging, news article/report and the impugned video of the sting operation stated to be posted on the website of Cobrapost. The dictum in law is as old as the hills, one who avers must prove.
157. Amidst the gung-ho arguments advanced by the learned counsel for the parties, the question of primordial importance which needs to be answered is that in whose eyes the plaintiff has been defamed?
158. Reading of the plaint meaningfully would be a good aide to determine the nature, tenor and colour of the suit and the basis of cause of action. On skimming through the plaint, the pivot of the plaintiff's claim against the defendants is that they disparaged his reputation and Page No. 81/107 defamed him in the eyes of others by publication of the impugned news article/report in the Times of India on 22.04.2014 and the impugned sting operation video on the website of Cobrapost. To prove the plaintiff having being defamed on account of the defamatory news article/report and sting operation video, Dr. Rajneesh Mohan Siwan (PW2), Vikas Yadav (PW3) and Anuj Kumar (PW4) stepped in the witness box. Though, the learned counsel for the plaintiff had taken an objection on the reliance placed by the learned counsel for the defendant No. 1 upon the Nanavati Commission Report and its evidentiary value being naught, this Court observes that not only has the plaintiff in paragraph No. 13 but also in the ensuing paragraphs of his plaint himself averred and relied upon the Nanavati Commission Report. It is not disputed by the plaintiff that Nanavati Commission Report is not in public domain.
159. This Court observes that the plaint is completely silent about the name of the witnesses, who appeared before the Court and testified that on account of the defamatory news article/report and defamatory sting operation video the plaintiff has been defamed. It is observed that there is not even a single word or averment with regard to the plaintiff being defamed in the eyes of his own son, namely, Dr. Rajneesh Mohan Siwan (PW2) and other witnesses Vikas Yadav (PW3) and Anuj Kumar (PW4). As it has been observed in the preceding paragraphs of this judgement that the pleadings lay the bedrock of any claim, this Court cannot permit the plaintiff to rely upon evidence beyond pleadings.
Page No. 82/107160. The issues were framed on 15.01.2016. On careful examination of the judicial record, particularly, the date of framing of issue and the testimony of the plaintiff, it is observed that the plaintiff stepped in the witness box and recorded his examination-in-chief on 08.04.2016. It is further observed that the plaintiff was cross-examined for the first time on 19.05.2016 and thereafter on 01.08.2016. From perusal of the order sheet dated 08.04.2016 it is observed that the Court granted 15 days' time from the date of the order the parties to file their list of witnesses. On 24.08.2016, an application under Order XVI, Rule 1 read with Section 151 CPC was moved on behalf of the plaintiff to bring on record his list of witnesses. The application moved by the plaintiff was allowed by order dated 24.08.2016 and the list of witnesses was taken on record. It is further observed that the Dr. Rajneesh Mohan Siwan, who is the son of the plaintiff recorded his testimony in part on 24.08.2016 and 24.11.2016. Thereafter, Vikas Yadav (PW3) and Anuj Kumar (PW4) recorded their testimony on 25.05.2018 itself.
161. This Court observes that post 08.04.2016 and 24.08.2016 when the plaintiff was allowed to file his list of witnesses until 25.05.2018, the plaintiff did not take any steps to amend his plaint and to bring on record any averment of himself being defamed either in the eyes of Dr. Rajneesh Mohan Siwan, and/or in the eyes of Vikas Yadav and Anuj Kumar.
162. On reading the examination-in-chief of Dr. Rajneesh Mohan Siwan (PW2) it is observed that he has not even mentioned the date Page No. 83/107 when the impugned article was published in Times of India and all that he has stated that he went through a news item published in the newspaper, which is subscribed by him. PW2 has further stated that he felt mental anguish after going through the news item because of the derogatory references made in the news item about his father. PW2 in his examination-in-chief has stated that he took the newspaper to his father, who lives separately, told him that he would be taking legal action against the concerned persons who were instrumental in seriously injuring his reputation. PW2 has stated in his examination-in- chief that his father intended to send legal notices to the parties concerned and for this purpose he wanted PW2 to find out the address of Cobrapost from its website which carried out the sting operation, as the sting operation formed the basis of the impugned news article/report.
163. PW2 has stated in his examination-in-chief that he checked the website of Cobrapost on Internet in the evening. PW2 has stated in his affidavit the address of the website of Cobrapost, "abc etc" let him know who we are and indicated the intention of the website to conceal and not to disclose its addressed to public. PW1 has further stated that to his surprise he noticed the contents of the sting operation which formed the basis of the news item displayed on the website of Cobrapost for viewing by the general public and he informed his father on phone about this. PW1 has stated on his father being informed by him, his father asked him to show the contents of the sting operation to him at his residence. PW2 has stated in his affidavit that after a few Page No. 84/107 days he took the laptop of his brother-in-law with its dongle to his father's residence and showed the contents of the sting operation to him.
164. PW2 has stated that after watching the video, his father wanted him to prepare five numbers of CDs of the same and give them to him. PW2 has further stated that his father gave him a format of a certificate, and told him the same is to be prepared and signed by him as the person who prepares the CD as per legal requirements attracted in the proceedings of the suit. PW2 has stated that he accordingly prepared a certificate and signed it and gave it to his father along with the compact discs for use in legal proceedings. PW2 has stated that he downloaded the contents of the compact discs from the website of Cobrapost through YouTube downloader. Along with his evidence by way of affidavit, PW2 also tendered and relied upon a certificate under Section 65B of the Indian evidence Act, 1872.
165. During the cross-examination of PW2 by the learned counsel for defendant No. 2, PW2 stated that he cannot produce any receipt/document to show his subscription of Times of India in and around the month of April 2014. PW2 stated that he did not verify the authenticity of news item published in the newspaper Times of India on 22.04.2014. It is observed that despite an opportunity given to the learned counsel for defendant No. 1, PW2 was not cross-examined by him.
166. Vikas Yadav (PW3) recorded his examination in chief on 15.12.2017. In his evidence by way of affidavit, PW3 has deposed that Page No. 85/107 he is a businessman by profession and the plaintiff and himself belong to the same village. Vikas Yadav deposed that he knows the plaintiff since his childhood and the plaintiff enjoyed a reputation of an honest and upright police officer in his mind and he held him in great esteem.
167. PW3 deposed that he read the news item in English Daily - Times of India about the role of Delhi Police with regard to the November 1984 riots. PW3 has stated in his affidavit that the name of the plaintiff was mentioned in the news article and it was mentioned that a former SHO Rohtas Singh, Delhi Cantonment, who was working under the plaintiff during the riots claimed that the plaintiff prevented him from opening fire on the mob indulging in rioting and had given the same in writing to the SHO. PW3 also stated that there were allegations against the plaintiff for having changed the police records which would have indicted him. PW3 has deposed that he was disappointed to read the news item and contacted the plaintiff on phone and told him about the same. PW3 has deposed that the plaintiff told him that what was written about him in the news article was not correct. PW3 has also stated in his affidavit, as the news item mentioned about the Cobrapost sting video, PW3 also watched the Cobrapost website and found the contents of the same displayed on it as reported in the news item.
168. PW3 has deposed in his affidavit that after having seen the video and read the news item, doubts lingered in his mind about the role in controlling the riots. PW3 has stated that a news item in a national daily like the Times of India and on Cobrapost website the contents of the Page No. 86/107 same could not be written without any basis and after that he stopped visiting the plaintiff at his residence as earlier, he used to go there quite often.
169. During his cross-examination by the learned counsel for defendant No. 2, PW3 stated that he has not brought any receipt to show that he was a subscriber of the newspaper Times of India in and around the month of April 2014. PW3 stated that the plaintiff must have joined the police services in late 60s and he retired in the month of April 2014. PW3 in his cross-examination stated that he does not remember the name of the person who took the interview with regard to the impugned news article (Ex.PW1/1) and sting operation video Ex.PW1/4 (sic). PW3 stated during his cross-examination that he has neither heard nor seen himself the alleged defamatory imputation levelled against the plaintiff in Ex.PW1/1 and Ex.PW1/4 (sic). It is observed that the sting operation video in the testimony of PW3 recorded on 25.05.2018 inadvertently refers the same as Ex.PW1/4, whereas the compact disc containing the impugned video has been tendered in evidence and marked as Ex.PW1/14.
170. PW3 during his cross-examination could not tell the language in which the sting operation was conducted, recorded. Though, PW3 claims to have known the plaintiff from his childhood and belong to the same native village, PW3 was unable to answer questions with regard to plaintiff being suspended from the police services and being indicted in various commissions.
Page No. 87/107171. PW3 admitted that whether the version of defendant No. 2 is true or false since he has never been present at that time and he did not verify the authenticity of the said version at any point of time. PW3 did admit that he came to Court to testify at the instance of the plaintiff to depose in his favour.
172. During the cross-examination of PW3 by the learned counsel for the defendant No.1 it has been elicited that he did not state the date of the defamatory news article published in Times of India. PW3 also stated that he did not file the copy of the impugned newspaper and a compact disc containing the impugned sting operation of video from the website of Cobrapost. PW3 denied the suggestion of having never read the impugned news article and seen the impugned sting operation video. PW3 further stated that he gained knowledge about Cobrapost for the first time only after having read the article in question in the Times of India newspaper.
173. Anuj Kumar (PW4), the third witness, who stepped into the witness box to testify for the plaintiff being defamed in his eyes. Anuj Kumar (PW4) in his examination-in-chief by way of affidavit deposed that he was introduced to the plaintiff by his elder brother, namely, Harsh Aggarwal, who is a Judge and met him for the first time when he accompanied his brother on a visit to the house of the plaintiff to seek blessings from him on his appointment as Addl. District Judge. PW4 has deposed in his affidavit that his elder was known to the plaintiff, as his brother and plaintiff's son, namely, Dr. Rajneesh Mohan Siwan were Page No. 88/107 schoolmates. PW4 has deposed that after few years he started to visit the plaintiff to seek guidance for competitive examinations.
174. PW4 has deposed in his affidavit by way of evidence that in April 2014 he came across a news item in English daily, Times of India dealing with role of police in the November 1984 riots in Delhi. PW4 has deposed that in the news item amongst others, SHO Rohtas Singh, Delhi Cantonment was quoted as having made a statement that DCP Chandra Prakash did not allow him to open fire on the rioters and he gave in writing to the SHO to the same effect. PW4 has also testified that in the news report it was mentioned that the plaintiff got some police records changed subsequently to suit his purpose, as regarded his performance. PW4 has deposed that after reading the news article, the image of plaintiff as an officer of repute diminished in his eyes and he has not visited the house.
175. During the cross-examination of PW4 it has come out that PW4 is the brother of the friend of plaintiff's son. PW4 stated during his cross-examination that he visited the house of the plaintiff in June 2005. PW4 stated that he cannot tell when plaintiff retired from Delhi Police services. PW4 also stated that he does not know whether plaintiff has received any awards either during his service tenure or after by the police department and whether the plaintiff has been awarded by the riot victim family. Though, PW4 stated himself being 7 years old in the year 1984 but he admitted that the area under Delhi Cantonment along Page No. 89/107 with other police stations were under direct control and supervision of the plaintiff.
176. PW4 during his cross-examination stated that he has never been part of police services or para defence services. PW4 admitted that various inquiry commissions were set up to inquire the role of Delhi Police including the plaintiff in respect of the riots of November 1984. PW4 further stated during his cross-examination whether the version of defendant No. 2 is correct or incorrect. He voluntarily stated that he never said anything about Rohtas Singh. PW4 answered the question of having knowledge about Rohtas Singh being suspended by the plaintiff. PW4 added that he was aware through the newspaper of year 2014, as it was clearly mentioned in there. PW4 denied the suggestion that there was no report in any newspaper containing the contents that Rohtas Singh was suspended by the plaintiff - DCP, Chandra Prakash.
177. PW4 admitted that he was not part of the sting operation in question and had not heard or seen defendant No. 2 making or uttering any defamatory imputation against the plaintiff.
178. During the cross-examination of PW4 by the learned counsel for the defendant No. 1 on 25.05.2018, PW4 stated that he had come to Dwarka Court for the first time with respect to this case when he had to sign the evidence by way of affidavit before the Notarized officer. PW4 stated that it was two years back. PW4 stated that plaintiff spoke to him around 10 days prior to him signing his evidence by way of affidavit. PW4 denied the suggestion that the plaintiff approached him at a Page No. 90/107 belated stage because he wanted to improve his case after realizing the lacuna in his case. PW4 denied the suggestion of not having read the defamatory article published in the newspaper Times of India.
179. Now if we come to the examination-in-chief i.e. evidence by way of affidavit of the plaintiff tendered in evidence on 08.04.2016 it is observed that the same is ditto copy of the plaint and there is no mention of the fact that him being defamed in the eyes of with Dr. Rajneesh Mohan Siwan (PW2), Vikas Yadav (PW3) and Anuj Kumar (PW4).
180. The plaintiff in paragraph No. 6 of the plaint has quoted the excerpt of the impugned news article published in the Times of India newspaper on 22.04.2014 and stated that the sting operation by Shri Aniruddha Bahal was carried out on 09.05.2011. It is observed on juxtaposing the averments made by the plaintiff with the impugned news article/report published in Times of India, Delhi Edn. on 22.04.2014 (Ex.PW1/1), there is neither mention of the name Aniruddha Bahal nor of the sting operation being carried out on 09.05.2011. However, it is observed that out of the 8 (eight) photographs in the impugned news article/report, the photograph at serial No. 2 is stated to be of Rohtas Singh, SHO, Delhi Cantt. (defendant No. 2 herein). It is further observed that the photograph of Rohtas Singh on the bottom left side has date and time stamp, "2011.05.09 09.02:03"
Page No. 91/107181. The High Court of Delhi in Budh Singh v. Raghubir Singh42 in the context of a challenge to a document claimed to be the validly executed last will of the deceased, held that though the onus to prove the will may be on the propounder thereof but a challenger to the will is required to, in the pleading, specifically plead the grounds on which a challenge is sought to be made to the will so as let the propounder of the will know the grounds on which the will is contested, so as to be in a position to lead evidence to dispel such grounds. A challenger to the will is not allowed to, without taking any pleading or any specific grounds of challenge, spring surprises and at the stage of arguments contend that this has not been proved or that has not been proved.
182. The Apex Court in Kalyan Singh Chouhan v. C.P. Joshi43 held that the object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the Court, so that no party at the trial is taken by surprise.
183. The High Court of Delhi in its latest judicial pronouncement in the case of Zile Singh v. Santosh @Santra & Ors.44 held that recording of evidence being a crucial procedure in the adjudication of a case, the same ought to be done with due diligence. The High Court further held that while filing of the list of witnesses is absolutely essential in a civil suit, the same ought to have been verified prior to fixing the matter for the plaintiff's and defendant's evidence. Once the evidence commences 42 MANU/DE/3871/2015 43 (2011) 11 SCC 786 44 CM(M) No. 1296/2018 date of decision 06.11.2019 Page No. 92/107 and witnesses are present, the verification of the list of witnesses is not to be done at that stage.
184. The Hon'ble High Court in paragraph No. 14 of the judgment in of Zile Singh v. Santosh @Santra & Ors. 45 passed the following directions:
"Directions:
14. Considering the manner in which evidence has been recorded in this matter, wherein a non-existent affidavit was sought to be exhibited, the following directions are issued to the trial courts:
i. Prior to listing a case for PE, the court shall ensure that the list of witnesses by all the parties is on record. The court would have the power to prune the list of witnesses so as to ensure that unnecessary burden is not put on the Registry in preparing summons and only those witnesses whose oral evidence is necessary shall be summoned;
ii. Prior to recording the examination in chief, the judicial file shall be seen to confirm that the affidavit in evidence is on record. All the documents which the witness seeks to exhibit shall be examined and either exhibited or marked. Only thereafter the cross examination would commence.
iii. If the witness is a summoned witness and no affidavit in evidence is filed, then the examination in chief shall be recorded, the documents (either in original or copy) shall be exhibited or marked and thereafter cross examination would commence. The order for the day would reflect if originals, certified copies or if copies are being exhibited/marked - whether originals were 45 ibid.Page No. 93/107
seen and returned. On the copy the remark OSR shall be given with the signature of the Presiding officer.
iv. If any documents are confronted during cross examination, the above procedure would be followed in respect of the said documents as well."
185. This Court observes that until the cross-examination of the plaintiff on 01.08.2016, no list of witnesses was filed by him. The plaintiff filed his list of witnesses on 01.08.2016 regardless of the issues being framed on 15.01.2016. The list of witnesses filed by the plaintiff was taken on record vide order dated 24.08.2016 and thereafter, the plaintiff witnesses - Dr. Rajneesh Mohan Siwan (PW2), Vikas Yadav (PW3) and Anuj Kumar (PW4) testified in favour of the plaintiff. This Court holds that the testimony of the plaintiff witnesses, particularly, Dr. Rajneesh Mohan Siwan (PW2), Vikas Yadav (PW3) and Anuj Kumar (PW4) is beyond the pleadings and the same cannot be read in evidence. Despite, the Court having granted liberty to the plaintiff to take his list of witnesses on record on 24.08.2016, the plaintiff's case cannot go any far, as there is no specific averment in the plaint with regard to the plaintiff being defamed in the eyes of Dr. Rajneesh Mohan Siwan (PW2), Vikas Yadav (PW3) and Anuj Kumar (PW4). It is further observed it is not the plaintiff's case that he had moved an appropriate application seeking amendment of pleadings. With the present plaint on record, I am of the considered view that the evidence led by Dr. Page No. 94/107 Rajneesh Mohan Siwan (PW2), Vikas Yadav (PW3) and Anuj Kumar (PW4) is beyond pleadings and the same cannot be read in evidence.
186. In Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors.,46 the Supreme Court held that the Court cannot consider any fact which is beyond the pleadings of the parties. The parties have to take proper pleadings and establish them by adducing evidence that by virtue of a particular irregularity/illegality, the result of the election has been materially affected.
187. Pleadings and particulars are required to enable the Court to decide the rights of the parties in the trial. Thus, the pleadings are of more help to the Court in narrowing down the controversy involved and it informs the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule, relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties and to narrow the area of conflict and to see just where the two sides differ - See Sri Mahant Govind Rao v. Sita Ram Kesho;47 M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar,48 and Raruha Singh v. Achal Singh & Ors.49 46 AIR 1995 SC 2284 47 (1898) 25 Ind. App. 195 48 AIR 1953 SC 235 49 AIR 1961 SC 1097 Page No. 95/107
188. The Apex Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors.50 held as under:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet....... In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question."
[Emphasis added by underlining and highlighting of text]
189. The Supreme Court in Bachha Nahar v. Nilima Mandal & Ors.51 held as under:
"The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or ground being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration."
[Emphasis added by underlining and highlighting of text]
190. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the Court cannot focus the attention of the parties, or its own attention on that claim or 50 AIR 1987 SC 1242 51 AIR 2009 SC 1103 Page No. 96/107 relief, by framing an appropriate issue. Thus, it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
191. The position in law is terra firma that in the absence of a plea no amount of evidence led in relation thereto can be looked into. There is no single averment in the plaint with regard to the plaintiff being defamed in the eyes of Dr. Rajneesh Mohan Siwan, Vikas Yadav and Anuj Kumar, who stepped in as plaintiff's witnesses.
192. In the case at hand, not only the plaint is bereft of an averment that the impugned video of the sting operation stated to be uploaded on the website of Cobrapost was downloaded by the plaintiff's son but also the plaintiff during his cross-examination on 01.08.2016 admitted that he has not named any person in his pleadings and evidence in whose presence he has been defamed.
193. It is one thing to say that a person can lead direct (oral) evidence on the basis of what he has seen, heard, holds an opinion about and his perception - See Section 58 of the Indian Evidence Act, 1872 but on the other hand, one not only has to plead his case also prove the same. Law abhors evidence beyond pleadings. This Court is in complete concurrence with the contention advanced by Mr. Shashank Dewan, learned counsel for the defendant No. 1 that it is impermissible in law to lead evidence beyond pleadings and the claim of the plaintiff be held as disproved.
Page No. 97/107194. This Court would also like to point about an observation made from the pleadings, examination-in-chief of PW2 - Dr. Rajneesh Mohan Siwan, son of the plaintiff herein and the certificate of Section 65B filed by the plaintiff on record is that not only the evidence led by PW2 is beyond pleadings but also his testimony cannot be relied upon as he lacks veracity and credibility. The reason for the same is that Dr. Rajneesh (PW2) in his examination-in-chief had stated that post reading the news article, he spoke with his father on telephone. On asking of his father he took the newspaper to his father's residence, who resided separately from PW2. PW1 told him that he would be taking legal action against the parties concerned who were instrumental in injuring his reputation. PW2 has deposed in his affidavit that his father intended to send legal notices to the parties concerned and asked him to find out the address of Cobrapost from its website, which had carried out the sting operation.
195. PW2 has deposed in paragraph No. 4 of his evidence-by-way of affidavit that he checked the website of Cobrapost in the evening. On visiting the website of Cobrapost, PW2 could not trace the address but he noticed the contents of the sting operation on the website of Cobrapost for view by general public. PW2 informed his father on the phone, who requested him to show the video. PW2 has deposed that after few days he took the laptop of his brother-in-law to his father's residence and showed him the contents of sting operation to him. PW2 has stated that after watching his father asked him to prepare 5 compact Page No. 98/107 discs of the same. PW2 has further deposed in his evidence by way of affidavit that his father then gave him a format of certificate, which he told him is to be prepared and signed by PW2, as the person who prepared the compact disc as per legal requirements. PW2 has stated in his affidavit by way of evidence that he accordingly prepared the certificate, signed it and gave it to his father along with the compact discs for use in the legal proceedings.
196. From the above it is observed that the same happened in the interregnum period of date of publication of impugned news article/report in Times of India on 22.04.2014 until the date of the filing of the suit i.e. 30.05.2014. Surprisingly, the certificate under Section 65B of the Indian Evidence Act, 1872 issued by Dr. Rajneesh Mohan Siwan tendered in evidence by the plaintiff as Ex.PW1/15 on 08.04.2016 is dated 14.03.2015. This Court finds that from the above observation only one inference can be drawn that testimony of PW2 - Dr. Rajneesh Mohan Siwan with regard to certificate under Section 65B Evidence Act, 1872 is neither believable nor credible and contrary to the very document on record, as on one hand he says to have prepared the certificate within few days of the format of the same handed over to him by his father (plaintiff herein) sometime in the month of May 2015 but the same document tendered in evidence bears the date of 14.03.2015.
Page No. 99/107197. At this stage, I deem appropriate to observe that I need not deal with the law reports Vidhyadhar v. Mankikrao;52 C.C. Alavi Haji v. Palapetty Muhammed & Anr.;53 Smt. Jagdish Kaur v. Rabinder Singh Mathoda;54 Slipper v. British Broadcasting Corpn.;55 Sewak Ram v.
R.K. Karanjiya; 56 Harbhajan Singh v. State of Punjab; 57Subramaniam Swamy v. Union of India 58 and Reynolds v. Times Newspapers, 59 as the plaintiff has failed to prove the essential ingredients of defamation and muster the obstacle of proving the fact that in whose eyes he had been defamed on account of the alleged defamatory news article/report published in Times of India, Delhi Edn. on 22.04.2014 and on account of defamatory sting operation video published on the website of Cobrapost.
198. Keeping in view the well settled position in law that one cannot be defamed in his own eyes and one has to be defamed in the eyes of the others, be it an individual, person and general public at large, this Court finds that the plaintiff has failed to prove the real issue in the case at hand that the libel viz, impugned news article/report published in the Times of India, Delhi Edn. on 22.04.2014 and the impugned sting operation video defamed him in the eyes of others and public at large.
52 AIR 1999 SC 1441 53 AIR 2007 SC 1705 54 AIR 1991 Del 50 55 (1991) 1 ALL ER 165 56 AIR 1981 SC 1514 57 AIR 1966 SC 97 58 AIR 2016 SC 2728 59 (1999) 4 ALL ER 609 Page No. 100/107 The plaintiff has failed to shift the onus saddled upon him in all three intertwined issues.
199. I, may emphasize here that the principal fact which has weighed with me in rejecting the claim of the plaintiff that he has been defamed by the defendants is that the plaintiff failed to plead and prove in whose eyes he was defamed on account of the impugned news article/report dated 22.04.2014 and the impugned video of the sting operation. The evidence led by the plaintiff is held to be beyond pleadings.
200. Accordingly, the issue Nos. 3, 4 and 5 are found and decided against the plaintiff and in favour of the defendants.
Issue No. 6Whether the plaintiff is entitled for the damages as claimed?
201. The onus to prove issue No. 6 was casted upon the plaintiff. As the issue Nos. 3, 4 and 5 have been ruled against the plaintiff and in favour of the defendants, wherein it has been held that the plaintiff has not been defamed on account of impugned news article/report and impugned sting operation video, thus the question of plaintiff being entitled to recover any damages does not arise. In view of the findings above, this Court need not delve upon the quantum of damages.
202. The issue No. 6 is decided against the plaintiff and in favour of the defendants.
Epilogue
203. While traversing through law books, law reports, reading material, etc., the Norms for Journalistic Conduct Edition 2019 by Press Page No. 101/107 Council of India, where posits the Guidelines on Sting Operation, 60 did seem very intriguing and relevant for such law suits where either party is aggrieved by investigative journalism or the torchbearer, truth seeker journalist intend to assert their right of free speech and expression. I, deem appropriate to reproduce the aforesaid guidelines, which reads as under:
"(b) Guidelines on Sting Operations
(i) A newspaper proposing to report a sting operation shall obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine and bona fide.
(ii) There must be concurrent record in writing of the various stages of the sting operation.
(iii) Decision to report the sting operation should be taken by the editor after satisfying himself of the public interest of the matter and ensuring that report complies with all legal requirements.
(iv) Sting operation published in print media should be scheduled with an awareness of the likely reader in mind. Great care and sensitivity should be exercised to avoid shocking or offending the reader."
204. In the case at hand, there is no qualm about the fact that the plaintiff has been deeply troubled by the impugned news article/report and the impugned sting operation video. In the present era of instant coffee, instant noodles, instant messages, instant news and news which create sensationalism are rampant. However, a good practice which if 60 Norms for Journalistic Conduct Edition 2019 by Press Council of India, p. 69-70 Page No. 102/107 adopted would certainly create less acrimonious battle scenes in courtroom drama, if the stakeholders adopt Carl Sagan's Standard:
Baloney Detection Kit. 61 The Carl Sagan standard can be summed in an acronym ECREE - Extraordinary claims require extraordinary evidence. The Carl Sagan's Baloney Detection Kit, which a journalist may find very handy to use in defence of truth and to deduct fake news are as under:
(i) confirm the facts;
(ii) encourage debate;
(iii) remember that authorities can be wrong;
(iv) develop more than one idea;
(v) try not to get overly attached to a hypothesis just because
it is yours;
(vi) quantify;
(vii) if there is a chain of argument, every link in the chain must work (including the premise), not just one of them;
(viii) Occam's Razor - a rule of thumb. When faced with two hypotheses that explain the data equally well, choose the simpler one, and
(ix) Always ask whether the hypotheses can at least in principle, be falsified.61
The Importance of being bearer of bad tidings by A.S. Panneerselvan, The Hindu, Delhi Edn. 30.12.2019, Page No. 103/107
205. "Defamation actions in India are a luxury and a dangerous luxury", this lesson has been imparted by none other than the legal luminary, Fali S. Nariman in Chapter 2 - More Watching than Pleading of his autobiography, Before Memory Fades... An Autobiography. 62 The relevant extract at page 49 - 51 is reproduced as verbatim:
"I now return to another of my early experiences in the Bombay High Court when I was witness to an incident early in my career which left a deep impression on me. It was a defamation case in which a Parsi solicitor and a Parsi journalist were involved. I was at the Bar for only three years when the defamation suit was heard. The facts were that in the 1950s a Parsi journalist (of no great repute) - Homji Daji - would lampoon and slander all and sundry in his columns in the weekly Gujarati newspaper, Kaiser-i-Hind. All the lampoons and slanders are long forgotten, but not the one which concerned Fardunji Dotivala, a Bombay solicitor (partner in a very old and distinguished firm of solicitors). Homji Daji wrote a column maligning Fardunji Dotivala (who always wore his feta - Parsi hat - at the back of his head, and we youngsters often wondered when it would fall off!). One day, Fardunji rushed into our chamber with a scurrilous article of Homi Daji and agrily showed it to Murzban Mistree (who, next to Sir Jamshedji, was the seniormost member of our chamber). Murzban read it and went blue in the face. Homji Daji had said 62 Fifteenth reprint 2016, Hay House Publishers (India) Pvt. Ltd.Page No. 104/107
in this article that Fardunji (who was a bachelor) used to sleep with his maidservant in his flat. The woman was also named. 'Shocking, shocking,' said Murzban. 'You must immediately file a suit for defamation.' So some of the more-experienced juniors in the chamber quickly prepared, for Fardunji, a plaint (a document that initiates a suit), and the suit was filed in court in record time. When an action for such scurrilous libel is filed, there is generally an offer of a printed apology by the defendant and payment of the plaintiff's 'cost-thrown-away', and everyone goes home happy. But there was no prospect of such an offer from Homi Daji. He was, what one would call, a 'nut'; and a colour - fiend as well. If he wore a green suit, he would wear a matching green shirt, green socks, green tie, and even green shoes, and on the jacket of his coat he had his name sewn on (!). Such a person could never be expected to apologize. And regrettably for Fardunji, the suit had to go on because Homi Daji pleaded justification and public interest (should a solicitor - a prominent solicitor having the confidences of his clients - he said, have sexual relations with his maidservant?). This was the subject of an article published in the next issue of the Kaiser-i-Hind weekly after the suit was filed! The battle lines were drawn and the case had to go on before a judge (Justice N.A. Mody) who had been recently elevated from the Bar, and who knew that Homi Daji was a peculiar fellow. He also knew that the plaintiff - solicitor - was a respectable person. The judge implored and then pleaded with Homi Daji Page No. 105/107 to settle, but Homi Daji said he wanted 'justice', and the case dragged on for a full month. It was a crowded court every single day of the hearing, and those had never read the article, came to hear that a well known Parsi solicitor had illicit relations with his maidservant. In the witness box, Homi Daji improved on his story and said that Fardunji Dotiwala had illicit relations with yet another maidservant whom he then proceeded to name. And the whole unedifying spectacle dragged on and on for the jollification of unemployed or hardly employed bystanders until it ended in sheer exasperation after four full weeks of hearing. The suit was finally withdrawn with a makeshift half-hearted apology, which was not even published. The case has been an object lesson for me viz. defamation actions in India are a luxury and a dangerous luxury at that, that they are too often filed in a hurry, and repented only at leisure. And then it is too late. I dissuade clients from filing such actions - civil or criminal - with Fardunji Dotivala's case in mind."
[Emphasis added by underling and highlighting of text] Relief
206. Alas! The plaintiff has miserably failed to prove his case of being defamed by the impugned news article/report, impugned video and his entitlement for damages.
207. In view of the above discussions, observations and findings, the suit for damages seeking decree of damages to the tune of ₹15,00,000/-
Page No. 106/107(Rupees Fifteen lakhs only) preferred by the plaintiff against the defendants is dismissed. However, I am constrained from not awarding the costs of the suit to the defendants, as the defendant No. 1 not only moved interim applications to recall a witness - plaintiff in person but also repeatedly filed motions to take on record the Nanavati Commission Report, which being an official document was available in the public domain. It was the bounden duty of the defendants to exercise self-restraint, which the defendant No. 1 did not do. Accordingly, the suit preferred by the plaintiff is dismissed with no order to costs.
208. Decree sheet be drawn accordingly.
209. File be consigned to record room only after due compliance and necessary action, as per Rules.
Digitally signed by HARGURVARINDERHARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2020.03.02 09:58:09 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on February 29, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi Page No. 107/107