Gauhati High Court
Smt. Dipannita Jaiswal vs The State Of Assam And Anr on 28 September, 2020
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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GAHC010007292015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 33/2015
1:SMT. DIPANNITA JAISWAL
W/O SRI SANJEEV JAISWAL R/O KHARGHULI, GUWAHATI-4, P.S. LATASIL
DIST. KAMRUP (M), ASSAM.
VERSUS
1:THE STATE OF ASSAM AND ANR
2:PROF. SUBHRAM RAJKHOWA
S/O LT. PARESH CH. RAJKHOWA R/O HOUSE NO. 23
1ST BYE LANE
NARIKALBARI
GUWAHATI- 781024
P.S. GEETANGAGAR
DIST. KAMRUP
ASSAM
Advocate for the Petitioner : MS.P PATHAK
Advocate for the Respondent : None appears
BEFORE HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN JUDGEMENT AND ORDER (CAV) 28.09.2020 Heard Mr A K Bhuyan, learned counsel for the petitioner. None appears for and on behalf of respondent Nos. 2 and 3.
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2. The petitioner, herein, is the Managing Director of the Company, namely, M/s Brahmaputra Tele Productions, which is running a tele-channel, namely, DY-365 and she looks after the general administration of the company. The aforesaid M/s Brahmaputra Tele Productions and its Managing Director, Editor-In-Chief, Executive Editor, Reporter and one Dr D N Choudhury, has been arrayed as an accused in the complaint filed by the respondent No. 2/the complainant, for broadcasting a news in their news channel on 05.02.2013, under the caption-"This time, sex scandal between Adhyapak and Adhyapika of Gauhati University." Accused No. 6, Dr D N Choudhury, who is the Assistant Professor of Department of Law, Gauhati University, gave interview to accused No. 5/the reporter with objectionable and defamatory language. In the said news item, by referring an anonymous letter purportedly written by some students, it was telecasted that-
"Dr Subhram Rajkhowa (the complainant) is busy in illicit relationship with Dr Shruti Deka, rather than running the Department.....being the Head of the Department, Dr Rajkhowa never sits in his chair.......he spends time with Dr Shruti Deka till 5 to 6:30 pm, in the Dean's Room at the ground floor etc."
3. The news channel telecasted the interview on the day of occurrence given by the said Dr Choudhury. Knowing about the aforesaid telecast from different phone calls, the complainant lodged the complaint, with the allegation that the above imputation made in the news item is absolutely false, baseless, frivolous, malicious and defamatory and without any proper enquiry by the news channel has telecast the news item with malafide intention to tarnish the image of the complainant in the eye of public. Such statement made by Dr Choudhury before the reporter is absolutely a false statement and hence, it is defamatory and derogatory in nature and published by the news channel intentionally. The complainant was working as a Professor and Head of the Department of Law and Dean, Faculty of Law, University of Gauhati, having excellent academic qualifications and a respectable person in the society, hence, it is alleged that such malicious news item has severely dented and lowered the image of the complainant before the public, students, scholars as well as immediate family members, who has high regards for him. Telecasting of such type of baseless, false and derogatory news has lowered his reputation in the society, which is irreparable in nature.
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4. It is alleged that the accused petitioner/the Managing Director and the Company, i.e., the Brahmaputra Tele Productions Ltd. is responsible for the entire affairs of the Company and petitioner, being the Managing Director is also vicariously liable for the programme broadcasted through the news channel. Similarly, other accused persons were also stated to be responsible for telecasting the news.
5. The said complaint was registered as CR Case No. 3857 c/2013, under Sections 499/500/501/502/34 IPC and the learned Court has taken cognizance of the offence under Section 502/34 IPC and has issued process against all accused persons including the petitioner.
6. Challenging the aforesaid proceeding, including the order of taking cognizance, the petitioner is before this Court, praying for quashing the entire proceeding on the ground that the learned trial Court has erred in law while taking cognizance against the petitioner as she being the Managing Director of the Company has nothing to do with the programmes, broadcasted by the news channel. It is the contention of the petitioner that for the purpose of broadcasting programmes, Editor-In-Chief is solely responsible and she is not responsible for selection of news articles for the purpose of broadcasting and nothing such is also averred in the complaint petition. It is submitted that the Managing Director of the Company cannot be fastened with the criminal liability and no vicarious liability can be attributed towards the petitioner. It is always the Editor, who is responsible and have control for selection of matters for broadcasting, inasmuch, as cognizance taken against the present petitioner is bad in law and liable to be set aside and quashed.
7. The learned counsel for the petitioner, Mr Bhuyan, has vehemently urged before this Court that the petitioner has been wrongly arrayed as an accused in the aforesaid case, who have no role in broadcasting the news and the concept of vicarious liability is foreign to the criminal law. It has also been contended that except some vague allegations, so far as regards the present petitioner, the complaint failed to reflect about the participation of the petitioner as the Managing Director towards the publication of the defamatory news item and that she has active knowledge thereof.
8. Learned counsel for the petitioner has placed reliance upon the decision of Andhra Page No.# 4/7 Pradesh High Court in 2010 (2) ALD (Crl.) 671; P Kiran v. Gopal Rao Gemini Television Pvt. Ltd., wherein it has been held that only telecasting a news by a TV Channel have no any bearing in deciding the complicity of the Managing Director, in gathering the news item, selecting the news item for telecasting and criminal liability of defamation, cannot be fastened and a Managing Director at the helm of affairs in the television, have no vicarious liability on criminal side can be attributed, unless there is specific or special provision in Section 499 IPC, mulcting him with such vicarious liability.
9. On the same line, decision of this Court in Criminal Petition No. 556 of 2012, Pranoy Bordoloi, Hemanta Goswami v. State of Assam & Anr. has been relied upon by the petitioner.
10. I have gone through the documents annexed and the challenge made by the petitioner.
11. It is the established proposition of law that to proceed against an accused for the offence of defamation the complaint must specifically disclose that the ingredients of the offence have been made out against the accused. Section 499 of the Indian Penal Code, 1960, reads as under:-
499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
12. The whole gamut of defamation law revolves around striking a proper balance between the protection of individuals' reputation and freedom of expression. If a newspaper publishes or a news channel airs what is improper, mischievously false or illegal news and abuses its liberty, it cannot be absolutely absolved of all liabilities. But the pertinent question is the extent of vicarious liability that can be attributed to the editor of a newspaper/journal and Chairman/Managing Director of a news channel for alleged defamatory remarks made by someone.
13. Chairman/Managing Director of a news channel can be held liable for publication of the offending news item only if it can be shown that he was somehow concerned with publication of the defamatory news item and that he had active knowledge thereof. As held in S Nihal Page No.# 5/7 Singh & Ors. v. Arjan Das; 1983 Cri. L.J. 777, an individual cannot be asked to answer the charge of defamation merely because he happened to be the Chairman of a company which owns a newspaper, without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company.
14. So, the whole concept of fastening liability hinges on knowledge. As held in Kalanithi Maran v. A Rathinaraj; 2017 SCC Online Mad 9723 and G K Mani v. New Generation Media Corporation (P.) Ltd; 2019 SCC Online Mad 8332, for fastening liability, what is of paramount importance is that knowledge has to be attributed to the accused person. In Kalanithi (supra), the petitioner is the Chairman-cum- MD of Sun TV Network Ltd. and the complaint was filed against him for telecasting an interview between the complainant and one person, on the allegation of falsity of the statement given in the news and consequently, the MD is equally responsible for telecasting such defamatory statement. The Hon'ble High Court held as below:-
"Vicarious liability under Press and Registration of Books Act, 1867, is not applicable to electronic media. Therefore, only general rule is applicable in the present case. To attract the offence of defamation, the imputation must have been made with the knowledge or intention or at least with reason to believe that it will harm the person concerned."
15. In G K Mani (supra), as aptly pointed out by the Hon'ble Madras High Court, the management of the news channel is expected to be apprised of the guests who are invited in the news channels and invitation can be construed as active knowledge. Hence, the management cannot be absolved of culpability by providing an absolute shield. However, there has to be a direct and specific averment in the complaint/petition highlighting the extent of culpability of the Director/Chairman and their active role in the said alleged acts of defamation to attract liability.
16. In CNN-IBN7 v. Maulana Mumtaz Ahmed Quasmi; reported in 2017 SCC Online HP 1290, the Hon'ble Court held as under:-
"Unlike civil liability, the penal provisions have to be strictly construed, wherein, there is no vicarious liability in criminal law unless statute takes that within its fold and thus, the petitioners merely by virtue of their being Managing Director, Editor-in-Chief, Editor and Page No.# 6/7 Founder Editor-in-Chief would not make them vicariously liable for the acts of their employees."
17. A constructive liability is created on the persons responsible for the business of the company, but knowledge is important to impute liability. Also it was held in Shiv Kumar Jatia v. State of NCT of Delhi; reported in 2019 SCC Online SC 1090, that de hors any vicarious liability provision, individual directors can be made accused only if there is sufficient material to prove their active role coupled with criminal intent. Further, it has been held that:-
"The liability of the Directors/the controlling authorities of company, in a corporate criminal liability is elaborately considered by this Court in the case of Sunil Bharti Mittal v. CBI; reported in (2015) 4 SCC 609. In the aforesaid case, while considering the circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person, this Court has held, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. At the same time, it is observed that it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the Statute specifically provides for. It is further held by this Court, an individual who has perpetrated the commission of an offence on behalf of the company, can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Further, it is also held that an individual can be implicated in those cases where statutory regime itself attracts the doctrine of vicarious liability by specifically incorporating such a provision."
18. It is apposite to note that if no specific and direct provision providing for vicarious liability of directors/management is sketched with clarity, then the individuals in that bracket can be prosecuted only if there is direct evidence of their active role coupled with criminal intent. In Managing Director, Castrol India Ltd. v. State of Karnataka; (2018) 17 SCC 275, the Hon'ble Apex Court held that in absence of specific averment made in complaint alleging role of Director/Managing Director in commission of offence, criminal proceedings cannot continue.
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19. So far as taking cognizance of offence, the Hon'ble Supreme Court in Fakaruddin Ahmed v. State of Uttaranchal and Another; (2008) 17 SCC 157, held as follows:-
"............it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
20. In the present case, the allegation made in the complaint, so far as the present petitioner is concerned, is not at all specific, as to the role in selecting the news and publishing the same with her active knowledge and intent. In the light of above legal proposition laid down, no vicarious liability can be attributed to the present petitioner in absence of specific allegations, specific statute to embrace the accused for the offence of defamation. The learned trial Court has taken cognizance without proper application of mind, which is liable to be interfered into.
21. For the reasons and discussions made above, and applying the ratio in the aforementioned cases, it can be held that criminal proceeding, so far as it relates to the present petitioner, cannot be allowed to continue and the same is liable to be quashed. Resultantly, the criminal petition is allowed and proceeding of CR Case No. 3857/2013, as regards the present petitioner, is hereby quashed and set aside
22. Petition stands disposed of accordingly.
JUDGE Comparing Assistant