Punjab-Haryana High Court
Swatantra Saxena vs Param Vir Rathee on 4 January, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:000239
CRM-M No. 39615 of 2018 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No. 39615 of 2018 (O&M)
Reserved on: 16.10.2023.
Pronounced on: 04.01.2024.
Swatantra Saxena ....Pe33oner
Versus
Param Vir Rathee, IPS ....Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Manu K. Bhandari, Advocate
for the pe33oner.
Mr. P.S. Poonia, Advocate, and
Mr. Pulkit Dhanda, Advocate,
for the respondent.
****
ANOOP CHITKARA, J.
Case no. Dated Sec ons Court Complaint 09.08.2008 499, 500, Judicial Magistrate Ist Class, Gurgaon No.556 of 2008 501 IPC (now Gurugram) Criminal Revision No. Date of Court Decision 53 of 2016 04-06-2018 Addi3onal Sessions Judge, CIS No. CRR/281/2016 Gurugram. CNR No.HRGR01-006886-2016
1. The pe33oner, an Ex-Special Correspondent, Dainik Tribune, aggrieved by the dismissal of the criminal revision pe33on by the Sessions Court refusing to quash the summons issued in the above-cap3oned complaint filed for criminal defama3on, had come up before this Court by filing the present pe33on under Sec3on 482 CrPC.
2. As per paragraph 2 of the pe33on, the pe33oner declares that he was working as Special Correspondent, Dainik Tribune being published by the Tribune Trust. Pe33oner's counsel submits that the complainant is aggrieved by the publica3on of news item in Dainik Tribune, Haryana Edi3on and also with Dainik Tribune, Chandigarh
3. The publishing of a news item in Dainik Tribune, Haryana Edi3on, and with Dainik Tribune, Chandigarh aggrieves the complainant.
4. The pe33oner is aggrieved by the issuance of summons and the upholding of the said order by the Sessions Court in the above-cap3oned complaint filed by the 1 1 of 16 ::: Downloaded on - 04-01-2024 23:14:47 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) respondent, Mr. Param Vir Rathee, IPS, against many journalists and poli3cal leaders, in all thirty-four people. The pe33oner rely on many grounds, including the issue of cause and jurisdic3on, and that even if the complaint is accepted as true, there is s3ll no viola3on of sec3on 499 IPC, nor did the pe33oner act with any malice or inten3on to defame the complainant. The pe33oner's counsel submits that during the interregnum of pendency of this pe33on, the complainant has seHled the maHer with some of the respondents; however, no such seHlement took place with the pe33oner.
5. The complainant-respondent opposed the present pe33on and filed his detailed reply. Referring to the reply, the complainant's counsel contended that the newspaper had published a false and defamatory statement. Counsel for the complainant submits that the media must publish reports aJer verifying their correctness, as any false publica3on may affect the character and credibility of any respectable person in society. In the present news report, the pe33oner did not take any correc3ve measures despite a clarifica3on issued by the CBI, which was published in Times of India on 18.6.2008, denying the fact of Sandeep Sharma being taken into custody. Despite the clarificatory news published in the Times of India, the pe33oner took no correc3ve measures. The complainant's counsel further submiHed that the Magistrate had issued a summons aJer being fully sa3sfied and following the procedure under Sec3on 202 CrPC. As such, there is no viola3on of Sec3on 202 CrPC, and the Magistrate had examined six witnesses, gone through all the evidence, and, on finding sufficient prima facie material and applied his mind.
6. I have heard counsel for the par3es and gone through the pleadings. An analysis of the pleadings, the submissions, and the applicability of judicial precedents will lead to the following outcome.
7. A news item was published in the Dainik Tribune (Haryana Edi3on) 19-06-2008, (Annexure P-1), which is extracted as follows: -
Chautala will be contes ng Vidhan Sabha Elec ons: Abhay Dainik Tribune (Haryana Edi on) 19.06.2008 Mandi Dabwali, 18th June: Today senior leader of I.N.L.O. and former member legisla ve assembly Abhay Singh Chautala started its four days public rela ons programme from Village Jandwala Bishroiyan of Dabwali Cons tuency. Chautala in its today's public rela ons programme interacted directly with party workers of approximately a dozen villages and listened to the hardships, they are facing. In villages, people put fourth the problems mainly concerning with electricity and water.
During a press interac on at the residence of I.N.L.O. leader Charanjit Mehta in village Sukerakheda, Chautala cri cized the present congress government as a failed government up ll today and further added that people are facing the scarcity of water even before but in today's situa on, it is regre0able that people are not ge1ng even drinking water While talking about the law and order arrangement problems, he added that Dacoity, Murder, The3 and Rape like incidents is news of everyday. He said that working mechanism of the Haryana Government is out sha0ered in the ma0er of CID Officer Paramveer Rathi. He said that the Government should register a case against Rathi a3er dismissing 2 2 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) him from service.
Chautala while taking the issue of infla on has badly cri cized the State and Centre Governments and further added that every me the people suffer whenever the congress government comes into power either in Centre or State, only then the infla on shoots up. In its today's round, Chautala told that the I.N.L.O. Supremeo Om Parkash Chautala will be contes ng elec on from the Dabwali Cons tuency. A3er clearing voices about the Dabwali Cons tuency in its today's round of campaigning, the workers were ever since demanding Chaudhary Om Parkash Chautala or Abhay Singh Chautala to contest the elec ons from this cons tuency.
On this occasion, the member legisla ve assembly Dr. Sita Ram, Former member legisla ve assembly Bhagi Ram, I.N.L.O. District President Padam Jain, Madan Sihag, Ranveer Singh Rana, Radhey Ram Godara, Lovely Mehta, R.K. Bhardwaj, Darshan Monga, Aasha Balmiki, Krishna Phogat, Narendra Brar, Kuldeep Singh Jammu and other dignitaries were present.
8. A news item was published in the Dainik Tribune (Chandigarh Edi3on) 19-06-2008, which is extracted as follows: -
"DAINIK TRIBUNE CHANDIGARH EDITION DATED 19.06.2008 Demanded ac on against the C.I.D. Chief Chandigarh, 18 June: A storm has occurred in Haryana Poli cs a3er coming out of the report in C.B.I. Enquiry that a3er being arrested one Sandeep Sharma, a fic ous medical Officer, who revealed that he has paid bribe to the Addi onal Police Director or Haryana (CID) namely Parmveer Singh Rathi for depu ng police officials for his security. And moreover, Haryana Janhit Congress (BL) (HAJKA) and I.N.L.O., both opposite par es demanded the dismissal of Paramveer Singh Rathi from the substan al post of CID Chief with immediate effect and also asked the Chief Minister Bhupendra Singh Huda to take moral responsibility of the same and demanded resigna on. The HAJKA Supremo Kuldeep Bishnoi told in an interview that it is cast upon the CID Chief to take care of the responsibility to have an eye on the law and order system for the security of the State and even a3er holding such a dignitary posi on, such officer comes in the trap of corrup on, then he no more reserves his right to sustain on the post. He did not even ask for the dismissal of Paramveer Singh Rathi but he asked for his arrest on the charges of corrup on.
Shri Bishnoi said that the above referred doctor has also confessed that the one I.P.S. Officer has misused his post & posi on and ordered for deposit of the amount of the government department in one bank for the purpose to advance loan of crores of rupees to the doctor. Shri Bishnoi has also asked for the arrest of this officer and strict ac on is demanded against him. He said that in the confessionals statement of the above referred doctor, it is revealed that the slogan of elimina ng fear and corrup on from the state is baseless and the police of the State while having hand in gloves with officers, gundas, land mafias and conspirators has destroyed the law and order mechanism of the State."
9. In Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi, (1996) 6 SCC 263, Supreme Court holds, [13]. ...It is the seHled legal posi3on that a Court has to read the complaint as a whole and find out whether allega3ons disclosed cons3tute an offence under Sec3on 499 triable by the Magistrate.
10. The relevant por3on of the complaint reads as follows:
... [5]. That on 17.06.2008 the complainant was shocked and deeply hurt to see a news item appearing in the "Indian Express" an English Na3onal Daily with a 3tle "Accused says he bribed ADGP, sought police protec- 3on" along with a photograph of the complainant. In the said news item 3 3 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) it was reported that one Dr. Sandeep Sharma, an accused in a criminal case, has confessed before the Central Bureau of Inves3ga3on that the complainant had recommended police protec3on to the said accused aJer taking bribe. A copy of the said news item which appeared in the "Indian Express" English Na3onal daily newspaper dated 17.06.2008 is being annexed herewith as Annexure P-1.
[6]. That the news item annexure P-1 is per-se defamatory. A bare read- ing of the news item makes it abundantly clear that the imputa3ons made therein have intended to lower the reputa3on of the complainant in the es3ma3on of everybody whoever happens to read the same. [7]. That on verifica3on by the complainant it transpired that the said Sandeep Sharma was yet to be taken into custody by the Central Bureau of Inves3ga3on and hence the ques3on of Sandeep Sharma making con- fession before the C.B.I. that the bribed the complainant for seeking po- lice protec3on does not arise at all. This factual aspect was clarified by the C.B.I. by way of a statement given to the Times of India an English Na- 3onal Daily and the same was published by the Time of India in its news- paper on 18.06.2008. A copy of the said news item, which appeared in the Times of India English daily on 18.06.2008 is being annexed herewith as Annexure P-2.
[8]. That similar publications containing above said malicious and factu- ally incorrect imputations were published by the various newspapers. A list of newspapers, which published per-se defamatory and factually incor- rect imputations against the complainant is being referred and annexed be- low for convenient reference of this Hon'ble Court: -
Sr. Name of the newspaper Date on Annexure as
No. which the annexed with
news item the complaint
published
1 Dainik Jagran (Panipat Edi3on) 18.06.2008 Annexure P-3
2 Dainik Jagran (Ludhiana Edi3on) 18.06.2008 Annexure P-4
3 Punjab Kesari 18.06.2008 Annexure P-5
4 Punjab Kesari (Sirsa Edi3on) 19.06.2008 Annexure P-6
5 Dainik Tribune 19.06.2008 Annexure P-7
6 Amar Ujala (Sirsa Edi3on) 19.06.2008 Annexure P-8
7 Dainik Jagran 19.06.2008 Annexure P-9
8 Dainik Lahoo Ki Loo 19.06.2008 Annexure P-10
9 Dainik Seema Kesari 19.06.2008 Annexure P-11
10 Amar Ujala (Chandigarh 19.06.2008 Annexure P-12
Edi3on)
11 Ajit Samachar 19.06.2008 Annexure P-13
12 Punjab Kesari 19.06.2008 Annexure P-14
13 Dainik Tribune 19.06.2008 Annexure P-15
14 Hindustan (HINDI) 19.06.2008 Annexure P-16
15 Ajit Samachar 24.06.2008 Annexure P-17
16 Punjab Kesari 24.06.2008 Annexure P-18
17 Dainik Jagran 24.06.2008 Annexure P-19
18 Amar Ujala 24.06.2008 Annexure P-20
[9]. That a bare reading of the news item, annexed hereinabove as An- nexure P-1 and Annexure P-3 to Annexure P-19 go to show that imputa- 3ons contained therein are per-se defamatory having tendency to lower the reputa3on of the complainant in the es3ma3on of his friends, col- leagues and public at large at Gurgaon wherein the complainant has the permanent residence and has served as a Police Officer on different posi- 3ons, as enumerated hereinabove. In the above said publica3ons the concerned accused responsible for the publica3ons have published de- famatory imputa3ons against the complainant, which is factually incor- rect. As a maHer of fact Sandeep Sharma was provided security on in- terim basis in view of the threat percep3on assessed by the District Po- lice, Panchkula and registra3on of a criminal case at his instance bearing FIR No.78 dated 09.07.2006 under Sec3on 387 IPC, Police Sta3on Sector 20, Panchkula wherein he had claimed threats to his life. Later on said FIR was cancelled and security provided to him was withdrawn against Rapat 4 4 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) No.22 dated 20.09.2007 office of OHC, District Panchkula. The complain- ant had no role to play in gran3ng police protec3on to said Sandeep Sharma, nor Sandeep Sharma ever confessed before C.B.I., which had re- gistered case No.RCCHG2008A0011, dated 16.04.2008, 16.04.2 Police Sta3on CBI/ACP/CHG under sec3on 120B, 420, 467, 468 and 471 IPC and Sec3on 13(2) read with Sec3on 13(1) (d) Preven3on of Corrup3on Act, 1988 against him (Dr. Sandeep Sharma) as the C.B.I. has not even arres- ted the said accused 3ll date and the said accused is confined in Central Jail, Ambala. Thus, it is quite apparent that the allega3ons/imputa3ons published against the complainant are factually incorrect and have been made with an inten3on to lower the credit of the complainant as a police officer in the es3ma3on of his colleagues, friends and the public, thereby rendering accused Nos.1 to 30, who have played their respec3ve roles in the publica3on of the aforesaid offending news items, liable for punish- ment for defama3on.
[10]. That the respondent No.31-Om Parkash Chautala has made defam- atory statements against the complainant which have been published in various newspapers already annexed as Annexure P-20, Annexure P-17, annexure P-18 and annexure P-19. Om Parkash Chautala has issued state- ments, which have been published in the above said newspaper to the effect that an accused of criminal background with allega3ons of forgery and chea3ng has leveled allega3ons against the complainant of taking bribe for giving security guards. The said statements issued by Om Par- kash Chautala being per-se defamatory and factually incorrect renders him liable for punishment under Sec3on 500 IPC.
[11]. That the accused No.32-Ashok Arora has issued statements. which have been published in various newspapers already annexed as Annexure P-9, annexure P-12, P-13 and annexure P-14 & P-16. The statements is- sued to "Dainik Jagran" Hindi Daily, which was published in the said newspaper on 19.06.2008 shows that Mr. Ashok Arora has claimed that it has come in the CBI Inquiry that Dr. Sandeep Sharma has bribed the com- plainant for providing security whereas no such statement was made by Sandeep Sharma before the C.B.I. and the said imputa3on against the complainant given by Mr.Ashok Arora in his press statement is factually incorrect and per-se defamatory. Similar imputa3ons have been made by Mr. Ashok Arora against the complainant in the other newspapers men- 3oned hereinabove which renders him liable for punishment under Sec- 3on 500 IPC.
[12]. That the respondent accused No.33 - Mr.Abhay Singh Chautala has issued defamatory statement to the press against the complainant, which have been published by various newspapers as news items already placed on record as annexure P-3, P-4, P-6, annexure P-7, P-8, annexure P-10 and annexure P-11. Mr. Abhay Singh Chautala vide his statement, published in the aforesaid news items, has claimed that C.B.I. inquiry Dr. Sandeep Sharma has leveled allega3ons against the complainant for tak- ing bribe for providing police protec3on. Mr. Abhay Singh Chautala on the strength of said allega3on has demanded complainant's suspension and registra3on of a case against him. The said statements of Mr. Abhay Singh Chautala are again apparently defamatory having tendency to ma- lign the image of the complainant besides being factually incorrect. Thus, Mr. Abhay Singh Chautala is liable to be punished for offence under Sec- 3on 500 of IPC.
[13]. That the respondent No.34-Kuldeep Singh Bishnoi has also issued defamatory statements against the accused with ulterior mo3ve. The statements of Mr. Kuldeep Singh Bishnoi issued to the press and pub- lished in the newspaper has already been annexed as annexure, P-5, P-3, P-4 & P-15. In his statement issued to "Punjab Kesari" a Hindi Daily news- paper Mr. Kuldeep Singh Bishnoi has claimed that an accused has made statement before C.B.I. to the effect that the complainant had accepted bribe for giving him security whereas no statement was ever given by any accused before C.B.I. The said statement of Kuldeep Singh Bishnoi against the complainant is per-se defamatory being factually incorrect. Mr. Kuldeep Singh Bishnoi has issued the above statement against the com- plainant with ulterior mo3ve of maligning the image of the complainant as an honest police officer and hence he is liable to be punished for the offence of defama3on.
55 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) [14]. That the offences of the respondent-accused persons is further ag- gravated by the fact that the Central Bureau of Inves3ga3on in its state- ment, which was published in "The Times of India' English Na3onal Daily newspaper on 18.06.2008 had clarifies that Sandeep Sharma accused in the Subham Hospital case had not given any statement to the inves3gat- ing agency claiming that he had bribed the complainant for geQng secur- ity and that C.B.I. was yet to take Sandeep Sharma into custody. Despite the publica3on of the said stand of Central Bureau of Inves3ga3on the re- spondent-accused persons con3nued making defamatory statements and published in newspapers sta3ng that Dr. Sandeep Sharma has made statement before the C.B.I. of having bribed the complainant for seeking police protec3on upto 24.06.2008. The said conduct of the respondent- accused persons goes a long way to show that the respondent-accused persons made their statements and publica3ons with an ulterior mo3ve to defame the complainant.
[15]. That on 17.6.2008 itself the complainant's old acquaintance, namely, Shri Mahesh Kumar s/o Late Shri Lal Chand, Phool Flour Mill, Rajiv Colony, Naharpura, Gurgaon, Police Sta3on Sadar, Gurgaon, Shri So- han Lal Saini s/o Shri Brij Lal Saini, Gandhi Colony, Kanheri Road, Near Jharsa, Sector-39, Gurgaon, Police Sta3on Sadar, Gurgaon, Shri Sa3sh Ku- mar s/o Shri Ram Avtar Swami, Near Hanuman Mandir Primary School, Jharsa, Gurgaon, Police Sta3on Sadar, Gurgaon, read the aforesaid de- famatory news items and conveyed their pain and agony of the complain- ant they suffered reading defamatory imputa3ons made against him. They expressed in clear words that they had high opinion about the com- plainant as police officer of high integrity and honesty but now their faith is shaken.
[16]. That the accused no.3, 7, 11, 15, 18, 21, 22, 26 and 30 have know- ingly made and reported; the accused no.1, 2, 4, 8, 12, 16, 19, 23 and 27 have knowingly published and printed the factually incorrect imputa3ons against the complainant with an inten3on so as to harm his reputa3on and the accused no.5, 6, 9, 10, 13, 14, 17, 19, 20, 24, 25, 28 and 29 have played a vital role in selec3on of aforesaid defamatory and false news material for publica3on in their respec3ve news papers. The said imputa- 3on has directly lowered his moral character as well as his creden3als as an honest and good police officer, in the es3ma3on of his colleagues, friends and the residents of Gurgaon in par3cular and the public in gen- eral.
[17]. That the offence has been partly commiHed within the area of Po- lice Sta3on Sadar, Gurgaon where the complainant's old acquaintance, namely Shri Mahesh Kumar s/o Late Shri Lal Chand, Phool Flour Mill, Rajiv Colony, Naharpura, Gurgaon, Police Sta3on Sadar, Gurgaon, Shri Sohan Lal Saini s/o Shri Brij Lal Saini, Gandhi Colony, Kanheri Road Near Jharsa, Sector 39, Gurgaon, Police Sta3on Sadar, Gurgaon, Shri Sa3sh Kumar s/o Shri Ram Avtar Swami, Near Hanuman Mandir Primary School, Jharsa, Gurgaon, Police Sta3on Sadar, Gurgaon, reside and therefore this Hon'ble Court has got the jurisdic3on to entertain and try the present complaint.
It is therefore, respecRully prayed that this Hon'ble Court may be please to summon, try and punish all the accused for offences under Sec3on 499, 500 and 501 IPC in the interest of jus3ce, equity and fair play."
11. In the complaint, Annexure P-2, filed before CJM Gurgaon [Now Gurugram], the complainant alleged that he is an IPS Officer of the 1997 batch and belongs to the Haryana cadre. He has been an honest officer, performing his du3es with exemplary devo3on and sincerity. His Annual Confiden3al Reports have rated him as an officer of integrity and honesty. At the 3me of the alleged defama3on and the filing of the complaint, he claimed to be posted as Addi3onal Director General of Police (CID), Haryana and asserted that a person of the highest integrity is posted on such a sensi3ve post as CID Chief of the State. The complainant further stated that he held a high reputa3on for honesty and integrity; for these reasons, he has earned respect in 6 6 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) society, among his colleagues, and the State.
12. In paragraph no. 8, the complainant men3oned a list of newspapers that had published such news and gave the names of eighteen newspapers. In paragraph no. 9 of the complaint, the complainant stated that the imputa3ons contained in the newspapers Annexure P-1, P-3 to P-19 therein showed that the contents were defamatory, which in turn lowered his reputa3on in the es3ma3on of his friends, colleagues, and public at large, at his place of residence and wherever he served as a police officer. All such reports were factually incorrect because Sandeep Sharma had been provided security keeping in view the threat percep3on assessed by the District Police, Panchkula, based on the criminal complaint given by Sandeep Sharma wherein he had claimed threats to his life, based on which police registered an FIR. Later, the said FIR was canceled, and his security was withdrawn. Paragraph no. 9 of the complaint explicitly men3oned that the complainant had neither any role in gran3ng such police protec3on nor Sandeep Sharma had confessed before the CBI because he was never arrested. Those allega3ons and imputa3ons published against the complainant were factually incorrect and were inten3onally made to lower the complainant's credit as a police officer in the es3ma3on of colleagues, friends, and the public.
13. Paragraph 13 of the complaint aHributes the allega3ons against the pe33oner, in the following terms, "[13]. That the respondent No.34-Kuldeep Singh Bishnoi has also issued defamatory statements against the accused with ulterior mo ve. The statements of Mr. Kuldeep Singh Bishnoi issued to the press and published in the newspaper has already been annexed as annexure, P-5, P-3, P-4 & P-15. In his statement issued to "Punjab Kesari" a Hindi Daily newspaper Mr. Kuldeep Singh Bishnoi has claimed that an accused has made statement before C.B.I. to the effect that the complainant had accepted bribe for giving him security whereas no statement was ever given by any accused before C.B.I. The said statement of Kuldeep Singh Bishnoi against the complainant is per-se defamatory being factually incorrect. Mr. Kuldeep Singh Bishnoi has issued the above statement against the complainant with ulterior mo ve of maligning the image of the complainant as an honest police officer and hence he is liable to be punished for the offence of defama on."
14. AJer filing the complaint, the complainant appeared as CW-1 before the concerned Court and on 09.08.2008, reiterated the allega3ons made in the complaint. It would be appropriate to extract the relevant por3on of the said statement, which reads as follows: -
Accused No.34 Kuldeep Singh Bishnoi has also given false and defamatory statement with the inten3on to defame me, which is published in newspaper Punjab Kesari dated 18.06.08, copy of which is Ex.C-19 and related news is at Page NO.5 of Ex.C-19, which is Ex.C-19/A and newspaper Dainik Tribune dated 19.06.08, copy of which is Ex.C-20 and the related news is as Ex.C-20/A at Page No.9 of Ex.C-20. The statement Ex.C-12/A and C-13/A of accused Kuldeep Singh Bishnoi was also published. Accused No.3, 7, 11, 15, 18, 21, 22, 26 & 30 have wriHen false and defamatory news and Accused No.1, 2, 4, 8, 12, 16, 18, 23 & 45-27 7 7 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) have printed and published the false and defamatory news, Accused No.5, 6, 9, 10, 13, 14, 17, 19, 20, 24, 25, 28 & 29 are also responsible for the selec3on process of the above said faluse and defamatory news to be published. The above said news was wriHen, got wriHen and was printed and published by all the accused persons in collision, with the inten3on to spoil my reputa3on. All the above news have destroyed my image and defamed by reputa3on of a honest and du3ful Police Officer in the eyes of my co-officers, friends, rela3ves, general public specially in the eyes of the residents of Gurgaon. The strongest ac3on may be taken against all the accused persons and they may kindly be punished.
Sd/-
ACJM/GSN
15. The complainant also examined CW4 Sandeep Khirwal, S.P. Panchkula who tes3fied that Sandeep Sharma had moved an applica3on for threat percep3on (Ex.24). Based on the threat percep3on, the Panchkula police registered an FIR and appointed one gun man for the personal security of Sandeep Sharma on 14.04.2006 and requisite entries were made in the record. Subsequently, the inves3ga3on did not find any substance in the allega3on of threat percep3on and closure report was filed in the said applica3on and consequently, the personal security was withdrawn on 20.09.2007 (i.e. aJer 01 year 03 months). Referring to the record, CW4 further tes3fied that Sandeep Sharma was given personal security because of the threat percep3on but later on it was withdrawn because the threat percep3on was not proved. He explicitly stated that no order was given to him to provide personal security from higher authori3es. Thus, through CW4 the complainant tried to prove that the allega3ons that he had taken bribe from Sandeep Sharma were dis-proved by an IPS rank officer. Panchkula Police had deputed personal security w.e.f. 14-04-2006 to 20-09-2007, thus, CW-4 established that Panchkula police provided security during this period based on threat percep3on and not because of the complainant's interven3on. However, the witness did not prove whether, aJer 20-09-2007, the Haryana Police had provided any personal security to Sandeep Sharma or not. CW5 tes3fied that 10 cases of fraud against bank were registered against Sandeep Sharma. The complainant also examined the Inspector of CBI as CW-3, who tes3fied that Sandeep Sharma was under arrest in another FIR and was lodged in Ambala Jail. He had applied for Sandeep's produc3on warrants on Aug 20, 2008, and interrogated him on Aug 21, 2008; before that, he had not arrested him. Thus, the complainant established by leading evidence that on June 17, 2008, when the news items were published, Sandeep Sharma had not been interrogated or arrested by CBI, and thus, the basis for the news items was false and incorrect. The complainant examined CW-2 & CW-6 to prove that aJer reading the news in ques3on, the complainant's image and reputa3on were lowered in their opinion.
16. Vide a detailed order dated 17.04.2010, learned Judicial Magistrate Ist Class found prima facie evidence for commission of offence punishable under Sec3on 500 and 501 IPC and accordingly summoned accused no.1 to 34. In the complaint, the pe33oner has been arraigned as Accused No.18.
17. The pe33oner challenged the summoning order by filing a pe33on under sec3on 8 8 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) 482 CrPC before this court. However, vide order dated 11-05-2016, a co-ordinate bench of this Court relegated the pe33oner to the Court of first revision by observing that they should have availed the remedy of criminal revision before the Sessions Court and extended the limita3on provided the revision is filed within 30 days. AJer that, the pe33oner challenged the summoning order by filing a criminal revision under sec3on 397 CrPC before the Gurgaon Sessions Court. Vide the impugned judgment dated 04- 06-2018, the Addi3onal Sessions Judge, Gurugram, dismissed the revision pe33on. It would be appropriate to refer the reasoning given by Addi3onal Sessions Judge which reads as follows: -
"[9]. More so, when any news regarding any person in the authority has been published in public domain without verifica on of facts and it has been found to be false, it cannot be said that the same has been published in good faith. When the clarifica on has been given by the CBI in news paper Ex.C2, published on 18.6.2008, it cannot be said on the face of it that the revisionist- accused on earlier occasion had acted without malafide inten on. When said accused Sandeep Sharma has not made any statement before CBI and he was not ever been taken in custody by CBI in corrup on related ma0er, the ques on of suffering of his statement before CBI does not arise at all. At least reasonable enquiry from all the concerned persons should have been made by the revisionist- accused before giving statement and publishing in news paper. Therefore, the learned trial court has rightly appreciated the evidence before summoning the accused. [10]. More so, it is se0led law that at the stage of summoning, the Magistrate has to evaluate the material placed before him from the prima- facie view and not from the point of view for convic on or acqui0al of the accused. Even otherwise, it has been observed in U.P. Pollu on Control Board Vs. M/s. Mohan Meakins Ltd. & ors.,2002(2) RCB. Criminal (421) that;
"In a summoning order, a Magistrate is not required to pass a speaking order but if complaint is dismissed, the Magistrate is to record reasons for dismissal and issuing process."
Similar view has been observed in S.W.P. Palan kar Vs. State of Bihar 2001(4) RCC 437 (SC) and in M/s Pepsi Foods Ltd. & anr. Vs. Special Judicial Magistrate & ors and in Shivjee Singh Versus Nagendra Tiwary and others 2010(2) CCJ 93.
In Bhushan Kumar and another Vs. State (NCT of Delhi) and another 2012(2) RCR (Criminal) 794, Hon'ble Supreme Court has held that:
"Once the Magistrate has exercised his discre on, it is not for the High Court or even Supreme Court to subs tute its own discre on for that of the Magistrate or to examine the case on merits".
18. Feeling aggrieved, the pe33oner came up before this court by filing this pe33on under sec3on 482 CrPC, seeking to quash the summoning order and to set aside the dismissal of criminal revision.
19. Sec3on 4991 of the Indian Penal Code, 1860 [IPC], makes defama3on an offense 1 499. Defama on.--Whoever by words either spoken or intended to be read, or by signs or by visible representa3ons, makes or publishes any imputa3on concerning any person intending to harm, or knowing or having reason to believe that such imputa3on will harm, the reputa3on of such person, is said, except in the cases hereinaJer excepted, to defame that person. Explana on 1.-It may amount to defama3on to impute anything to a deceased person, if the imputa3on would harm the reputa3on of that person if living, and is intended to be hurRul to the fellings of his family or other near rela3ves.
Explana on 2.-It may amount to defama3on to make an imputa3on concerning a company or an 9 9 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) in terms of the legisla3ve intent explicitly expressed and subject to the excep3ons provided. It reads, "Whoever by words either spoken or intended to be read, or by signs or by visible representa3ons, makes or publishes any imputa3on concerning any person intending to harm, or knowing or having reason to believe that such imputa3on will harm, the reputa3on of such person, is said, except in the cases hereinaJer excepted, to defame that person."
20. In N. Ram v. Rashtriya Swayamsewak Sangh, 2012(3)RCR (Criminal)161, Punjab & Haryana High Court observed, The essence of the offence of defama3on must have been made either with the inten3on of causing harm, or knowing or having associa3on or collec3on of persons as such.
Explana on 3.-An imputa3on in the form of an alterna3ve or expressed ironically, may amount to defama3on.
Explana on 4.-No imputa3on is said to harm a person's reputa3on, unless that imputa3on directly or indirectly, in the es3ma3on of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful.
Illustra ons
(a) A says-"Z is an honest man; he never stole B's watch", intending to cause it to be believed that Z did steal B's watch. This is defama3on, unless it fall within one of the excep3ons.
(b) A is asked who stole B's watch. A points to Z, intending to cause it to be believed that Z stole B's watch. This is defama3on, unless it fall within one of the excep3ons.
(c) A draws a picture of Z running away with B's watch, intending it to be believed that Z stole B's watch. This is defama3on, unless it fall within one of the excep3ons. First Excep on. -Imputa3on of truth which public good requires to be made or published.- It is not defama3on to impute anything which is true concerning any person, if it be for the public good that the imputa3on should be made or published. Whether or not it is for the public good is a ques3on of fact. Second Excep on.-Public conduct of public servants.-It is not defama3on to express in good faith any opinion whatever respec3ng the conduct of a public servant in the discharge of his public func3ons, or respec3ng his character, so far as his character appears in that conduct, and no further. Third Excep on. -Conduct of any person touching any public ques3on. -It is not defama3on to express in good faith any opinion whatever respec3ng the conduct of any person touching any public ques3on, and respec3ng his character, so far as his character appears in that conduct, and no further. Illustra3on It is not defama3on in A to express in good faith any opinion whatever respec3ng Z's conduct in pe33oning Government on a public ques3on, in signing a requisi3on for a mee3ng on a public ques3on, in presiding or aHending at such mee3ng, in forming or joining any society which invites the public support, in vo3ng or canvassing for a par3cular candidate for any situa3on in the efficient discharge of the du3es of which the public is interested.
Fourth Excep on. -Publica3on of reports of proceedings of courts- It is not defama3on to publish a substan3ally true report of the proceedings of a Court of Jus3ce, or of the result of any such proceedings. Explana on. -A Jus3ce of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Jus3ce, is a Court within the meaning of the above sec3on. Fi*h Excep on. -Merits of case decided in Court or conduct of witnesses and others concerned. It is not defama3on to express in good faith any opinion whatever respec3ng the merits of any case, civil or criminal, which has been decided by a Court of Jus3ce, or respec3ng the conduct of any person as a party, witness or agent, in any such case, or respec3ng the character of such person, as far as his character appears in that conduct, and no further.
Illustra ons (a) A says-"I think Z's evidence on that trial is so contradictory that he must be stupid or dishonest." A is within this excep3on if he says this in good faith, inasmuch as the opinion which he expresses respects Z's character as it appears in Z's conduct as a witness, and no farther. (b) But if A says-"I do not believe what Z asserted at that trial because I know him to be a man without veracity"; A is not within this excep3on, inasmuch as the opinion which expresses of Z's character, is an opinion not founded on Z's conduct as a witness.
Sixth Excep on.-Merits of public performance.-It is not defama3on to express in good faith any opinion respec3ng the merits of any performance which its author has submiHed to the judgment of the public, or respec3ng the character of the author so far as his character appears in such performance, and no farther.
Explana on. -A performance may be submiHed to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Illustra3ons
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech in public, submits that speech to the judgment of the public.
(c) An actor or singer who appears on a public stage, submits his ac3ng or singing to the judgment of the public.
(d) A says of a book published by Z-"Z's book is foolish; Z must be a weak man. Z's book is indecent; Z must be a man of impure mind." A is within the excep3on, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z's character only so far as it appears in Z's book, and no further.
(e) But if A says-"I am not surprised that Z's book is foolish and indecent, for he is a weak man and a liber3ne." A is not within this excep3on, inasmuch as the opinion which he expresses of Z's character is an 10 10 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) reason to believe that such imputa3on would cause harm to a per- son.
21. S. 499, Explana3on 4.-No imputa3on is said to harm a person's reputa3on, unless that imputa3on directly or indirectly, in the es3ma3on of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful.
22. The complainant did not explicitly refer to the news that was read, and aJer reading it, the complainant's reputa3on lowered amongst the public and his witnesses. AJer detailing the loss of reputa3on because of the news published in the Indian Ex- press, the complainant stated as follows, "[8]. That similar publica3ons containing above said malicious and factually incorrect imputa3ons were published by the various newspapers. A list of newspapers, which published per-se defamatory and factually in- correct imputa3ons against the complainant is being referred and annexed below for convenient reference of this Hon'ble Court: -.." AJer that, the complaint has a table men3oning the names of the newspapers. Nothing had stopped the complainant to men3on the news published by the pe33oner's newspapers, which the people and the witnesses read and aJer reading the said news, in their opinion, adversely affected the complainant's esteem and reputa3on. On this count, the complaint did not disclose any offense commiHed by the pe33oner, and there was no sufficient prima facia evidence based on which they could have been summoned.
23. To prove the loss of reputa3on, the complainant had men3oned such details in the complaint, and on being called by the concerned Magistrate, the complainant tes3fied on oath and also examined CW-3 & CW-6 as members of the public and society to establish that aJer reading the news, the complainant's image lowered in their opinion not founded on Z's book.
Seventh Excep on. -Censure passed in good faith by person having lawful authority over another.-It is not defama3on in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in maHers to which such lawful authority relates.
Illustra on A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashierare within this excep3on.
Eighth Excep on. -Accusa3on preferred in good faith to authorised person. -It is not defama3on to prefer in good faith an accusa3on against any person to any of those who have lawful authority over that person with respect to the subject-maHer of accusa3on.
Illustra on If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master;if A in good faith complains of the conduct of Z, a child, to Z's father-A is within this excep3on.
Ninth Excep on. -Imputa3on made in good faith by person for protec3on of his or other's interests.-It is not defama3on to make an imputa3on on the character of another provided that the imputa3on be made in good faith for the protec3on of the interest of the person making it, or of any other person, or for the public good.
Illustra ons (a) A, a shopkeeper, says to B, who manages his business-"Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty." A is within the excep3on, if he has made this imputa3on on Z in good faith for the protec3on of his own interests. (b) A, a Magistrate, in making a report to his own superior officer, casts an imputa3on on the character of Z. Here, if the imputa3on is made in good faith, and for the public good, A is within the excep3on. Tenth Excep on.-Cau3on intended for good of person to whom conveyed or for public good.- It is not defama3on to convey a cau3on, in good faith, to one person against another, provided that such cau3on be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
1111 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) opinion. It would be relevant to refer to the newspaper that the witnesses had referred that had lowered the complainant's esteem in their eyes. The complainant appeared as CW-1 before the concerned Court, and on 09.08.2008, the statement's relevant por3on reads as follows:
"On 17.06.08, I got mental shock and deep grief aJer reading an ar3cle alongwith my photo, published in an English Daily Na3onal Newspaper namely Indian Express. The heading of that news was Accused Says He bribed, ADGP, shought Police Problem. It was published in this ar3cle that Accused Dr.Sandeep Sharma has admiHed the statement of accused C.B.I. that I (Complainant). have taken bribe from him to provide him police protec3on. The copy of the newspaper is Ex. C-1 and related newspaper is exhibited at Page-1 of Chandigarh News Line as Ex.C-1/A...."
(emphasis supplied)
24. To establish the lowering of the image, the complainant examined CW-2 Mahesh Kumar, whose relevant tes3mony is extracted as follows:
"...because of a good Police Officer. A great grief was caused to me aJer reading the news published in the newspaper dated 17.06.08 (Ex.C-1/A) that the person whom..."
(emphasis supplied)
25. To corroborate the lowering of the image, the complainant examined CW-6 Sa3sh Kumar, whose en3re tes3mony reads as follows:
"C.W.-6 -Sa3sh Kumar, S/o Sh. Ram Avtar, aged 28 years, R/o Village Jhesar, P.S. Sector-20, Gorgaon, Advocate on S.A. Stated that I know Sh. Param Vir Rathee personally from the last 9/10 years. Sh. P.V.Rathee was earlier posted as S.P. In Gurgaon and also as D.I.G. / Gurgaon and at present he is posted as ADJ / CBI. The reputa3on of Complainant Sh. P.V.Rathee, when he was in Gurgaon was of a very honest and du3ful officer. I know Sh. P.V.Rathee as a very honest and du3ful Police Officer and also use to meet him personally. I read the news dated 17.06.08 and I was deeply shocked to know that the person whom I considered as a very honest and du3ful officer I told Sh. P.V.Rathi over the phone that I considered you as honest and du3ful officer. At that 3me one of my villagers Sh. Sohan Lal Saini was also there and he knows me very well. One Mahesh Kumar was also with us. All of us told Sh. P.V.Rathi voer the phone that aJer reading the news about you, we are very shocked and in sorrow. AJer that this news came in various papers. AJer this our faith towards Sh. P.V. Rathi became shimmy.
RO & AC Sd/-
Sa3sh Kumar 13.09.08"
(emphasis supplied)
26. CW-2 and CW-3 tes3fied that they had formed his opinion aJer reading Ex.C1/A, which is Indian Express and not the Dainik Tribune news, for which the complainant arraigned the pe33oner as an accused in the complaint. CW-6 read the news dated 17- 06-2008 and the present news was published on 19-06-2008, as such he did not read the news reported in "Dainik Tribune" Further, he did not refer to any specific newspaper. Thus, the complainant did not sa3sfy the fundamental requirements of Sec3on 499 IPC, and despite there being no evidence that any member of the public 12 12 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) had read the news published in the Dainik Tribune, the concerned Judicial Magistrate, without there being any material, summoned the pe33oner, and the Sessions Court also upheld such illegal summoning. On this ground alone, the complaint, taking of cognizance, order of summoning, and dismissal of the revision pe33on, qua the pe33oner, is liable to be quashed and set aside.
27. The other sec3ons invoked against the pe33oner are 5002 & 5013 IPC that prescribe punishment for the offences commiHed under S. 499 IPC.
28. In addi3on to this there is another angle to disrupt the pe33oner's criminal trial. A bare perusal of the complaint and the alleged offending por3on is just a correct repor3ng of statements given by Sh. Kuldip Bishnoi and Sh. Ashok Arora; and the pe33oner are en3tled to protec3on under the first and ninth excep3ons of Sec3on 499 IPC.
29. The pe33oner's counsel (without admiQng any liability or conceding anything) states that the news reports contained the statement made by Sh. Kuldeep Bishnoi, a poli3cal leader, was elected as MLA in 1998 from Adampur and is the son of Chaudhary Bhajan Lal, Former Chief Minister of Haryana. In 2007, he leJ the Indian Na3onal Congress and founded the Haryana Janhit Congress. The newspapers published his statement and correctly reported it, and even the complaint does not men3on wrong repor3ng. The complainant's grievance is that they should not have published the news, and the non-publica3on of such a statement would frustrate the purpose of running a newspaper.
30. An analysis of this submission establishes by pre-ponderance of probability that neither the newspaper, its reporter, nor the pe33oner had made any personal or biased comments. The news item was published based on the statement of Kuldeep Singh Bishnoi, Member Parliament- accused no.34, and Ashok Arora, Haryana State President- accused no.32, and the pe33oner and "Dainik Tribune" are squarely en3tled to protec3on under the 1st and 2nd excep3ons of Sec3on 499 IPC.
31. Another reason to disrupt the criminal trial is that the newspapers had published the statement made by MLA Kuldeep Bishnoi, a poli3cal leader and founder of the Haryana Janhit Congress. The complaint does not men3on wrong repor3ng. The complainant's grievance is that they should not have published the news, whereas the non-publica3on of such a statement would have frustrated the very purpose for which the newspapers are meant. The complainant did not aHribute any change in the statement or version of Sh. Kuldeep Bishnoi, or that the newspaper, its reporter, or the pe33oner had made any personal or biased comments. The correct repor3ng itself proves by a preponderance of probability of due care and cau3on, and there is no reason why it should not be accepted as the discharging of their burden by the 2 Punishment for defama3on. 500. Punishment for defama3on.--Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 3 Prin3ng or engraving maHer known to be defamatory. 501. Prin3ng or engraving maHer known to be defamatory.-- Whoever prints or engraves any maHer, knowing or having good reason to believe that such maHer is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
1313 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) pe33oner under S. 106 of the Indian Evidence Act, 1872. Consequently, the pe33oner, Dainik Tribune, its report, and its Editors are en3tled to benefit under the first and the second excep3ons, to S. 499 IPC and the pe33oner have discharged their primary burden by demonstra3ng the contents of the news report itself and is en3tled to the benefit of the first and ninth excep3on of S. 499 IPC.
32. In Chaman Lal v. State of Punjab, AIR 1970 SC 1372, Supreme Court holds [15]. In order to come within the First Excep3on to Sec3on 499 of the Indian Penal Code it has to be established that what has been imputed concerning the respondent is true and the publica3on of the imputa3on is for the public good. The onus of proving these two ingredients, namely, truth of the imputa3on and the publica3on of the imputa3on for the public good is on the appellant. ...
[17]. The Ninth Excep3on states that if the imputa3on is made in good faith for the protec3on of the person making it or for another person or for the public good it is not defama3on.... Good faith requires care and cau3on and prudence in the background of context and circumstances. The posi3on of the person making the imputa3on will regulate the standard of care and cau3on...
33. Sec3on 52 of IPC reads as follows, "Good faith". --Nothing is said to be done or believed in "good faith" which is done or believed without due care and aHen3on.
34. In Harbhajan Singh v. State of Punjab, AIR 1966 SC 97, a three-member bench of Supreme Court holds, [14]. It is true that under Sec3on 105 of the Evidence Act, if an accused person claims the benefit of Excep3ons, the burden of proving his plea that his case falls under the Excep3ons is on the accused. But the ques3on which oJen arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Excep3on is exactly the same as the nature and extent of the onus placed on the prosecu3on in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecu3on has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substan3ally his claim that his case falls under an Excep3on. Where an accused person is called upon to prove that his case falls under an Excep3on, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability". As soon as the preponderance of probability is proved, the burden shiJs to the prosecu3on which has s3ll to discharge its original onus. It must be remembered that basically, the original onus never shiJs and the prosecu3on has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shiJed to the prosecu3on which has s3ll to discharge its original onus that never shiJs, i.e,, that of establishing, on the whole case, guilt beyond a reasonable doubt.
35. In M.A. Rumugam v. KiHu, (2009) 1 SCC 101, Supreme Court re-iterates, 14 14 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) [16]. It is now a well-seHled principle of law that those who plead excep3on must prove it. The burden of proof that his ac3on was bonafide would, thus, be on the appellant alone.
36. In Aroon Purie v. State of NCT of Delhi, 2022(4) Law Herald (SC) 3177, Supreme Court holds, [18]. We now turn to the ques3on: whether the benefit of any of the excep3ons to Sec3on 499 of the IPC can be availed of and on the strength of such excep3ons, the proceedings can be quashed at the stage when an applica3on moved under Sec3on 482 of the Code is considered?
[21]. It is thus clear that in a given case, if the facts so jus3fy, the benefit of an excep3on to Sec3on 499 of the IPC has been extended and it is not taken to be a rigid principle that the benefit of excep3on can only be afforded at the stage of trial.
[22]. Similarly, the law laid down in K.M. Mathew, (2002) 6 SCC 670, which has subsequently been followed, is to the effect that though the benefit of presump3on under Sec3on 7 of the 1867 Act is not applicable so far as Chief Editors or Editors-in-Chief are concerned, the maHer would be required to be considered purely from the perspec3ve of the allega3ons made in the complaint. If the allega3ons are sufficient and specific, no benefit can be extended to such Chief Editor or Editor-in-Chief. Conversely, it would logically follow that if there are no specific and sufficient allega3ons, the maHer would stand reinforced by reason of the fact that no presump3on can be invoked against such Chief Editor or Editor-in-Chief.
[23]. In light of these principles, if we consider the asser3ons and allega3ons made in the complaint, we find that nothing specific has been aHributed to A-1, Editor-in-Chief. He cannot, therefore, be held liable for the acts commiHed by the author of the Ar3cle, namely, A-2. The allega3ons made in the complaint completely fall short of making out any case against A-1.
[24]. With regard to the role ascribed to A-2, it must be stated at this stage that as an author of the Ar3cle his case stands on a different foo3ng. Whether what he did was an act which was jus3fied or not would be a ques3on of fact to be gone into only at the stage of trial.
37. Next submission is that because the pe33oner resided at a place that was beyond the territorial jurisdic3on of the Magistrate before whom the complaint was filed, as the mandatory procedure prescribed under Sec3on 202, CrPC was not complied with, and on this ground alone, the summoning order and dismissal of revision deserve to be set aside. Since the pe33oner did not reside within the territorial jurisdic3on of the Ld. Magistrate Gurugram, and the Ld. Magistrate did not comply with the mandatory provisions of Sec3on 202 of the Code of Criminal Procedure, which requires the Ld. The Magistrate would either inquire about the case himself or direct an inves3ga3on by the Police Officer to determine whether there are sufficient grounds to proceed against the pe33oner. In the absence of such inquiry was made by the Ld. Magistrate, the summoning order is liable to be quashed on this short ground alone. However, since this Court has already given findings that would lead to the quashing of the complaint, there is no need to adjudicate this point, and even if this argument is rejected, it will not change the outcome; as such, this Court is not answering it.
38. In the light of judicial precedents and apprecia3on of the complaint, the preliminary evidence led by the complainant, and its analysis makes it clear that the pe33oner is en3tled to the benefit of the first and ninth excep3ons to S. 499 IPC, which 15 15 of 16 ::: Downloaded on - 04-01-2024 23:14:48 ::: Neutral Citation No:=2024:PHHC:000239 CRM-M No. 39615 of 2018 (O&M) makes the order of summoning bad in law. Even if the allega3ons against the pe33oner men3oned in the complaint and the preliminary evidence are accepted en3rely, those fails to point towards any actual viola3on of Sec3on 499 IPC. In the facts and circumstances peculiar to this case, the Court's non-interference would result in a miscarriage of jus3ce, and thus, this Court invokes the inherent jurisdic3on under sec3on 482 CrPC and quashes the summons and all subsequent proceedings as well as the judgment qua the pe33oner, passed in the above cap3oned criminal revision. Bail bonds/surety bonds, if any, furnished shall stand discharged.
Pe on is allowed. All pending applica3on(s), if any, stand closed.
(ANOOP CHITKARA)
JUDGE
January 04, 2024
Jyo3 Sharma
Whether speaking/reasoned : : Yes
Whether reportable : YES
Neutral Citation No:=2024:PHHC:000239
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