Karnataka High Court
Malatesh Angur vs J M Rajashekhar on 29 June, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.11792/2013
BETWEEN:
1. MALATESH ANGUR
AGE: 41 YEARS
OCC: REPORTER OF KOURAVA
DAILY NEWSPAPER OF HAVERI
DIST: HAVERI
2. SHIVANAND GOMBI
AGE: 35 YEARS
OCC: REPORTER OF
KANNADA PRABHA
R/O. BASAWESHWAR NAGAR
B BLOCK, HAVERI
DIST: HAVERI
3. VIJAYA HUGAR
AGE: 34 YEARS
OCC: REPORTER OF KANNADA
PRAJAVANI DAILY NEWSPAPER
R/O. BASAWESHWAR NAGAR
B BLOCK, HAVERI
DIST: HAVERI
4. RAJU NADAF
AGE: 42 YEARS
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OCC: UDAYAVANI REPORTER
R/O. IJARILAKMAPUR
HAVERI, DIST: HAVERI
... PETITIONERS
(BY SRI VIJAYENDRA BHIMAKKANAVAR, ADVOCATE)
AND
J M RAJASHEKHAR
AGE: 43 YEARS
OCC: GOVT. EMPLOYEE
R/O. BAPUJI CIRCLE
BACKSIDE OF HEAD POST OFFICE
HALAGERI CHAWL
RANEBENNUR, DIST: HAVERI
... RESPONDENT
(BY SRI P S TIGADIKAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO 1) QUASH THE IMPUGNED
COMPLAINT VIDE ANNEXURE-A DATED 03.03.2009 FILED
UNDER SECTION 200 OF CR.P.C. ON THE FILE OF THE II
ADDL.JMFC COURT, RANEBENNUR IN C.C.NO.424/2009
(P.C.NO.31/2009).
THIS PETITION COMING ON FOR FINAL HEARING,
HAVING BEEN HEARD AND RESERVED FOR ORDERS ON
01.06.2017, THIS DAY THE COURT, MADE THE
FOLLOWING:
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ORDER
This is the petition filed by petitioners/accused Nos.1 to 4 under Section 482 of the Cr.P.C. praying this Court to quash the impugned complaint filed vide Annexure-A dated 03.03.2009 under Section 200 of the Cr.P.C. on the file of II Addl.J.M.F.C., Ranebennur in C.C.No.424/2009 (P.C.No. 31/2009). The further relief for quashing the impugned order of taking cognizance vide Annexure-B dated 16.05.2009 in the said proceeding and also for quashing the impugned order Annexure-G dated 27.04.2013 passed in Criminal Revision Petition No.95/2009 on the file of Court of Fast Track Judge, Ranebennur.
2. Brief facts of the case of the complainant as per the complaint averments that respondent No.2 in this petition is the complainant, who is a government employee and also he calls himself as Amateur Journalist, who has published many articles and books on the subject of law and also been writing articles in many newspapers. On invitation by the Department of Kannada and Culture, :4: complainant is said to have delivered speeches on many occasions. Similarly on the occasion of 2008 Haveri Zilla Utsav on 07.12.2008 in the ninth session, it was decided to invite the complainant to speak on the subject "Mass media and Right to Information Act." The complainant though not being Law Graduate, but as a citizen of the country he has knowledge of law and therefore he is said to have willingness to speak on the subject, in order to educate the general public and invitation cards were also printed and many of his fans were eager to listen to him. Further for the said lecture, he supposed to have received Rs.800/- as remuneration from the Deputy Commissioner. But on 04.12.2008 accused No.1/Reporter has published an article indicating that though the complainant being a government employee and not a reporter raised propriety of his participation at the function and by which the Deputy Commissioner has deleted his name from the function. As accused No.1 and 3, others who approached the Deputy Commissioner and later published articles in the newspapers were responsible for cancellation of his lecture, :5: deprive his remuneration and thereby lowered his reputation, respect and laurels and thereby directly defamed the complainant. Complainant issued legal notice and on not receiving any reply from the accused filed the complaint under Section 200 of Cr.P.C. against the accused/petitioners for the offences punishable under Sections 500, 109 and 34 of I.P.C. On receipt of the complaint, trial court proceeded to record the sworn statement and on examination of complainant as PW1 and documents Ex.C1 to C11 took cognizance of the offences and ordered to register the case and issued summons to the petitioners. Being aggrieved by the same, the petitioners herein have challenged the order of taking cognizance by preferring revision petition before the Fast Track Judge, Ranebennur in Criminal Revision Petition No.95/2009. Same came to be rejected by upholding the order of the J.M.F.C. Court, Ranebennur.
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3. Heard the arguments of learned counsel appearing for petitioners/accused and also the learned counsel appearing for respondent/complainant.
4. Learned counsel for petitioners during the course of argument made the submission that looking to the materials produced by the complainant, absolutely there is no prima facie case made out as against any of the petitioners herein. He also made the submission that the learned Trial Judge without application of mind mechanically took cognizance of the offences and ordered for issue of the process. He also made the submission that complainant is a government servant and for participating in such functions, he has not sought previous sanction from his department, which is contrary to Section 28 and 29 of the Karnataka Civil Services Rules, 1958. He also made the submission that even on earlier occasion also because of the participation of the respondent/complainant in such functions without the prior sanction he was kept under suspension and enquiry was also initiated against him. :7: These aspects were not at all taken into consideration by the learned Magistrate while ordering for registering the criminal case, taking cognizance and issuing process against the petitioners.
5. Learned counsel further made the submission that the said imputations published by the petitioners will not constitute the alleged offence and the case of the petitioners/accused comes within the Exception No.2 and also Exception No.9 to Section 499 of the I.P.C. It is also his contention that the alleged imputations without publication is not liable for punishment for defamation under Section 499 and 500 of the I.P.C. Learned counsel submitted that as per Section 7 of the Press and Registration of Books Act, 1867, it is only the Auditor, Printer and Publisher of a newspaper can be made responsible, but none else can be made as accused. He submitted that the petitioners herein have reported actual state of affairs in the press conference held by the Deputy Commissioner. He also submitted that looking to the :8: allegations in the complaint that Deputy Commissioner removed his name by committing the conspiracy with the accused in view of such allegation Deputy Commissioner could have been made as a party. The trial court without taking into consideration whether complaint for defamation is maintainable without making the auditors and publishers of the newspapers, passed such illegal order, which is not sustainable in law. Hence, the counsel submitted that the revisional court also has not taken these aspects into consideration and wrongly rejected the revision petition. Hence, he submitted to allow the petition and to set aside the initiation of the proceedings as prayed for in the petition.
6. Per contra, the learned counsel appearing for the respondent/complainant submitted that it is as per the request of the Deputy Commissioner, the respondent accepted the invitation to give lecture and to participate in the said function. Learned counsel submitted that as the respondent/complainant was having knowledge in the said :9: field and with an intention to educate the public and thinking that his lecture will be useful to them, he accepted the request made by the Deputy Commissioner. Learned counsel submitted that the learned Magistrate taken all the aspects of the matter into consideration then only he ordered for registering the criminal case, taken cognizance and issued process to the petitioners herein. It is also his contention that in the similar type of matter when the accused approached this Court seeking quashing of the proceedings, same came to be rejected. Hence, he lastly made the submission that the orders passed by the learned Magistrate Court and the revision court are legal and valid and does not call for any interference in this petition. Hence, he submitted to reject the petition.
7. I have perused the grounds urged in the petition and lower court records. I have also considered the submissions made by both the learned counsel at the Bar, which is also referred above.
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8. Since this is the petition filed under Section 482 of the Cr.P.C. seeking quashing of the proceedings and since there is already an order by the learned J.M.F.C. Court taking cognizance of the offence as against the petitioners herein and issued the process and when such order of the learned Magistrate has been challenged before the Revisional Court (District and Sessions Court) and said revision petition also came to be dismissed. Whether the petitioners can still maintain the present petition seeking quashing of the criminal proceedings is the point for consideration by this Court. The Court has to examine that when once there was a revision petition preferred before the Sessions Judge Court and as per Section 397(3) of the Cr.P.C. the second revision petition is barred, whether the present petition is filed by the petitioners to circumvent the provision Section 397(3) of the Cr.P.C. Even if such a rider is there in Section 397(3) of the Cr.P.C. but if the petitioners herein are able to establish the illegalities said to have been committed by the trial court as well as the revisional court then in such circumstances certainly this : 11 : Court can entertain the criminal petition and it can interfere into the orders of the courts below to do justice to the parties. Keeping these things in mind let me proceed to examine the records of the case. The private complaint was filed by the complainant/respondent herein under Section 200 of the Cr.P.C. before the J.M.F.C. Court as against the petitioners herein alleging that by publishing the news item in the respective newspapers as mentioned in the private complaint, it affects the reputation of the complainant and thereby his reputation has been lowered and hence the petitioners herein have committed the alleged offences of defamation is the sum and substance of the averments of the private complaint. The imputations published by each of the petitioner in the respective newspapers is also culled out and referred by the learned J.M.F.C. Court while the order for taking cognizance and issuance of the process. I have perused the private complaint as the original records are secured from the concerned J.M.F.C. Court. Looking to the said private complaint, there is no verification by the complainant to the said complaint to the effect that which : 12 : are the averments according to his knowledge and which are the averments that he either came to know or believed the correctness of the said averments. The complainant has also not filed the affidavit supporting the contentions that he has raised in the private complaint. When such serious averments are made in the private complaint the complainant ought to have filed the supporting affidavit, which he has not done in this case.
9. Coming to the merits of the case, the main allegation of the complainant that though he is not a Law Graduate, but he know the law subjects and he is also writing articles in many newspapers and he claims that he is an Amateur Journalist. It is also his further case that on invitation by the Department of Kannada and Culture, the complainant is said to have delivered speeches on many occasions and similarly on the occasion 2008 Haveri Zilla Utsav on 07.12.2008 in the ninth session, it was decided to invite the respondent/complainant to speak on the subject 'Mass Media and Right to Information Act.' The imputations : 13 : published goes to show that the petitioners herein who are the Reporters of the respective newspapers, in the meeting held with the Deputy Commissioner of the concerned District, brought to the notice of the Deputy Commissioner that the respondent/complainant herein being a Government Servant working in the Health Department, without prior permission of the Government how he was allowed to participate in such functions and how he was allowed to deliver a lecture on the subject and even they have discussed with the Deputy Commissioner how he can get the remuneration for such participation. The news item also goes to show that after coming to know about these things, the concerned Deputy Commissioner took a decision to delete the name of the respondent/complainant from the schedule programme. Therefore, there is also an allegation in the private complainant that the Deputy Commissioner is also in conspiracy with the present petitioners herein took a decision to delete the name of the respondent/complainant for his participation in the said function for the purpose of giving lecture on the subject 'Mass Media and Right to : 14 : Information Act.' After publication of the said information in the newspapers, there is no material to show that the Deputy Commissioner has not at all taken such decision and the imputations published by the petitioners herein are baseless and without such decision taken by the Deputy Commissioner. Not only that perusing the documents produced by the petitioners they goes to show that the official memorandum dated 22.08.2007 issued by the Director, Health and Family Welfare Services, Bengaluru, wherein it is stated that the present petitioner has been informed that he being working in the Health Department as a Junior Male Health Assistant in the Primary Health Centre, Kudpalli without getting prior permission of the Government, it is not permissible for him to participate in any newspaper or the journals or in the editorial by giving such articles. And as he participated without prior permission of the Government, reprimand has been imposed on him. Another document dated 10.02.2010, which is also from the District Health and Family Welfare Officer, Haveri goes to show that the respondent/ : 15 : complainant though working as a Government Servant in the Health and Family Welfare Department as a Junior Male Health Assistant, he is giving publications in the newspapers claiming that he is the expert in the subject of Right to Information and he is the Journalist and about other subjects without getting prior permission of the concerned competent authorities and he is also giving provocative statements in the newspapers and creating disturbance among the public. It is also mentioned that his act is also against the Government Rules and when the same has been questioned by the District Reporters Association, he filed the defamation case against them and giving trouble to them and as his participation in those things is without the prior permission of the Government, he being a government servant, order was passed invoking Rule 10(1) (ka) of the Karnataka Civil Services Classification Control and Appeal Rules, 1957 and initiated departmental enquiry against him and he was also kept under suspension.
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10. I have also perused Rule 9 of the Karnataka Civil Services (conduct) Rules, 1966, which reads as under:-
9. Connection with Press or Radio -
(i) No Government Servant shall, except with the previous sanction of the Government, own wholly or in part, or conduct or participate in the editing or management of any newspaper or other periodical publication.
(ii) No Government Servant shall, except with the previous sanction of the Government or of the prescribed authority or except in the bona fide discharge of his duties. -
(a) publish a book himself or through a publisher, or contribute an article to a book or a compilation of articles or;
(b) participate in a radio broadcast or
contribute an article or write a
letter to a news paper or periodical
either in his own name or
anonymously or pseudonymously
or in the name of any other
person;
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Provided that no such sanction shall be
required. -
(c) if such publication is through a
publisher and is of a purely
literary, artistic or scientific
character; or
(d) if such contribution, broadcast or
writing is of a purely literary,
artistic or scientific character.
Therefore, looking to the said Rule also the claim of the respondent/complainant that he is Amateur Journalist, he know law and he has published the books on the law and other subjects is again contrary to the above said Rule 9 of the Karnataka Civil Services (conduct) Rules, 1966. Even for publishing such books being a government servant he was suppose to obtain the prior permission of the government, which he has not followed in the case.
11. With regard to his claim that the said publication of the news items by the petitioners herein also affected his monitory benefits as it was decided to pay him honorarium of Rs.800/- for his participation in the said : 18 : Haveri Zilla Utsav. In this connection, Rule 28 and 29 of Karnataka Civil Services Rules, 1958 are also relevant which Rules reads as under:-
28(a) Fees:- A competent authority may permit a Government servant, if it be satisfied that this can be done without detriment to his official duties or responsibilities to perform a specified service or series of services for a private person or body or for a public body, Including a body administering a local fund and to receive as remuneration therefor, if the service be material, a nonrecurring or recurring fee.
(b) Honoraria:- A competent authority may grant or permit a Government servant to receive an honorarium as remuneration for work performed which is occasional 1 [or intermittent) in character and either so laborious or of such special merit as to justify a special reward. Except when special reasons, which should be recorded in writing, exist for a departure from the provision, sanction to the grant or acceptance of an honorarium should not be given unless the work has been undertaken with the prior consent of : 19 : Government and its amount has been settled in advance.
29(a) Any Government servant may receive a fee from a private person or private body or a public body whose funds are not administered by Government for work done for it, provided: -
(1) he has undertaken the work with the knowledge and 1 [sanction of Government and it can be carried out without detriment to his official duties.] Therefore, looking to these provisions also, it goes to show that he has not at all complied the mandatory requirements of Rule 28 and 29 of the Karnataka Civil Services Rules, 1958.
12. The materials on record also goes to show that the petitioners have did in the case is they simply questioned and brought to the knowledge of the Deputy Commissioner that respondent/complainant being a government servant how he can participate in the public function, how he can give the lectures without the prior : 20 : permission of the government and in view of that the Deputy Commissioner deleted the name of the respondent/ complainant from his participation in the said function. Though the allegations are made even as against the concerned District Deputy Commissioner that he also conspired with the petitioners for deleting his name, the Deputy Commissioner is not a party to the petition the publishers and the editors of the said newspapers are not at all the parties to the petition. So this itself clearly goes to show that filing of the petition as against the present petitioners is with a malafide intention to wreck vengeance against the petitioners herein. Looking to the materials placed on record, so also the legal aspect involved in the matter, there is no prima facie material to file such complaint as against the present petitioners. The complaint filed against the present petitioners is totally groundless and without any prima facie material. Therefore, the guidelines issued by the Hon'ble Apex Court at Guideline Nos.1 and 7 in the case of State of Haryana and others V/s Bhajan Lal and others reported in 1992 SCC (Cri) 426 is : 21 : also made applicable to the case on hand, which reads as under:-
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
13. Apart from that it is the contention of the petitioners herein that they brought to the notice of the concerned Deputy Commissioner about the participation of the respondent/complainant being a government servant without the prior permission and the publication of the news item is made in good faith for protection of the public interest. Therefore, looking to this contention of the : 22 : petitioners herein the case of the petitioners also comes under 9th exception to Section 499 of the I.P.C. which reads as under:-
Ninth Exception. - Imputation made in good faith by person for protection of his or other's interests. - It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
14. In view of the above discussion and looking to the materials placed on record, the trial court as well as the revision court have not at all looked into these important material aspects and also the legal position involved in the case and wrongly proceeded to take cognizance in the matter and issued the process to the petitioners. Looking to the materials on record even if the trial will be proceeded as against the petitioners herein, it will be a futile exercise and it will be waste of valuable time and energy of the Hon'ble Court. Hence, it is a fit case to invoke jurisdiction : 23 : under Section 482 of the Cr.P.C. Accordingly, petition is allowed. The order dated 16.05.2009 passed by the learned II Addl.J.M.F.C., Ranebennur in C.C.No.424/2009 and also the order dated 27.04.2013 passed by the Fast Track Court Judge, Ranebennur in Crl.R.P.No.95/2009 are hereby set aside and the criminal proceedings initiated as against the present petitioners herein are hereby quashed.
Sd/-
JUDGE CLK