IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 451 OF 2009
(Arising out of S.L.P.(Criminal) No.1382 of 2008)
Capt. S.D. Kathuria (Retd.) ... Appellant (s)
Versus
Thiru N. Ravi & Ors. ... Respondent (s)
WITH
CRIMINAL APPEAL NO. 452 OF 2009
(Arising out of S.L.P.(Criminal) No.1383 of 2008)
Capt. S.D. Kathuria (Retd.) ... Appellant (s)
Versus
Vikram Philips & Anr. ... Respondent (s)
ORDER
Leave granted.
With the consent of learned counsel for the parties, the appeals
are taken up for final disposal at this stage itself.
The appeals are directed against two judgments and orders dated
10th August, 2007 and 16th August, 2007 passed by the High Court of
Delhi in Crl. M.C. No.3003 of 2004 and Crl. M.C. No.1639 of 2007
respectively. By the impugned orders, a learned single Judge, in
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exercise of jurisdiction under Section 482 of the Code of Criminal
Procedure (for short `the Code’), has quashed the order of the Trial
Court summoning the petitioners before the High Court, (Respondents
No.1 to 3 in Criminal Appeal No. 451 of 2009 and Respondent No.1 in
Criminal Appeal No. 452 of 2009) to face trial for offence under Section
499 read with Sections 107/34 of the Indian Penal Code (`IPC’ for short).
Consequently, the complaint against the said petitioners has also been
quashed.
Since both the appeals arise out of the same complaint, these are
being disposed of by this common order.
In order to appreciate the controversy, a few material facts may
be noted:
A news item titled “Crime and Harassment” relating to alleged
harassment of one Ms. Loveleen in her matrimonial home at the hands
of her father-in-law and husband was published on 19th January, 1993 in
the daily Hindu newspaper. Ms. Loveleen was married to the son of the
appellant herein, namely, Rakesh Kathuria (since deceased), on 10th
January, 1992. Alleging that a defamatory statement had been made by
the father of Ms. Loveleen, namely, N.D. Chawla and the same had
been published by the newspaper without verification, a legal notice was
issued by the appellant and his son Rakesh Kathuria to the editor,
publisher, reporter, the newspaper, N.D. Chawla and Ms. Loveleen
asking them to explain their position with regard to the said article.
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Having failed to receive any response, the appellants and his son filed a
criminal complaint against the editor, the publisher, the reporter, the
newspaper, N.D. Chawla and Ms. Loveleen, accused Nos.1 to 6
respectively under Sections 499 and 500, IPC. However, during the
pendency of the said complaint, the son of the appellant committed
suicide on 2nd March, 1995. After the death of Rakesh Kathuria, Ms.
Loveleen got remarried. Subsequently, at the request of the appellant,
proceedings against Loveleen (accused No.6) were dropped. Vide order
dated 27th August, 2002, the Magistrate took cognizance of the offence
and directed issue of summons to the aforenamed five accused). The
editor, the publisher, the newspaper and the reporter filed two petitions
under Section 482 of the Code for quashing of the complaint against
them. As noted earlier, by the impugned orders, the High Court has
quashed the summoning orders as well as the complaints against the
accused Nos. 1 to 4. For the sake of ready reference, the relevant
portion of the impugned order is extracted below:
“22. Having chosen to drop proceedings against
Loveleen and her father complainants cannot be permitted
to indirectly achieve what they cannot achieve directly.
23. Loveleen and her father have been freed of all
bondage pertaining to, arising out of and connected with
the matrimonial bond between Loveleen and complainant
No.2. In my opinion, they being the principal tort feasers,
complaint cannot be allowed to continue against the printer
and the publisher or for that matter editor of the newspaper
who at best would be guilty of abetting the commission of
the offence under Section 499 IPC. My reason for so
holding is that there are no averments in the complaint that
the petitioners published the offending news item with an
intent to defame the complainants. Charge against the
petitioners is, as per para 14 of the complainant, that they
4did not verify the truth of the allegations leveled by
accused Nos.5 and 6 before publishing the news item, it is
further relevant to note that the complaint nor the
summoning order has proceeded on the basis that qua the
petitioners case is made out under Section 499 IPC read
with Section 107 IPC or read with Section 34 IPC. There
is no allegation of conspiracy, i.e., Section 120B IPC is not
attracted.”
Aggrieved, the sole complainant is before us in these appeals.
We have heard learned counsel for the parties.
Learned counsel for the appellant has strenuously urged that
having regard to the nature of the imputations against the respondents,
the learned Judge was not justified in quashing the complaint at the
threshold and to hold that the defamatory article was protected by
exception 9 to Section 499 IPC. Learned counsel has submitted that
one of the factors which has heavily weighed with the Court in quashing
the complaint against accused Nos.1 to 4 is the dropping of proceedings
by the petitioner against Loveleen (accused No.6) and her father N.D.
Chawla (accused No.5). Learned counsel asserts that as a matter of
fact proceedings were dropped only against accused No.6 and not
against accused No.5, at whose instance the news item was published
and, therefore, on account of this factual error, which goes to the root of
the matter, the order of the High Court stands vitiated.
Mr. S.S. Gandhi, learned senior counsel appearing on behalf of
the respondents (accused Nos. 1 to 4) very fairly states that as per the
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order sheet of the Trial Court, proceedings against accused No.5 were
not dropped.
We are of the opinion that in view of the aforenoted admitted
factual position, the order passed by the High Court cannot be
sustained. It is manifest from the afore-extracted operative portion of
the impugned order that the learned Judge was of the view that since
proceedings against the principal tort teasers, namely, accused No.5
and 6 had been dropped, the whole genesis of the complaint vanished
and thus, complaint against accused No.1 to 9 for offence under Section
499/500, IPC could not continue. We feel that the aforenoted
inadvertent factual error about dropping of proceedings against accused
No.5, who is alleged to have got the news item published, had
influenced the Court to a great extent, resulting in miscarriage of justice.
We are, therefore, of the opinion that this aspect of the matter needs to
be re-examined by the High Court. For the view we have taken, it is
unnecessary to examine the submissions made by learned counsel for
the appellant on the merits of the case.
Consequently, the appeals are allowed; the impugned orders are
set aside and both matters are remitted back to the High Court for fresh
consideration in accordance with law.
Both the appeals stand disposed of in the above terms.
…………………………J.
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[ D.K. JAIN ]
…………………………J.
[ R.M. LODHA ]
New Delhi,
March 6, 2009.