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CR.MA/3146/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3146 of
2010
=========================================================
D
B CORP LTD - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
AR GUPTA for
Applicant(s) : 1,
MS ML SHAH ASST. PUBLIC PROSECUTOR for
Respondent(s) : 1,
PARTY-IN-PERSON, Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 23/08/2010
ORAL
ORDER
1. Heard,
learned Counsel for the petitioner, learned APP for respondent
No.1-State and respondent No.2, original complainant, who is present
in person, for final disposal of the petition.
2. This
petition is filed by the original accused No.1, namely M/s. D.B.
Corporation Limited, seeking quashing of the complaint at
Annexure-A , bearing Criminal Case No.111 of 2010,
dated 10.08.2009, filed before Judicial Magistrate First Class,
Deesa.
3. The
said complaint was filed by respondent No.2 before the learned
Magistrate, alleging the offences punishable under Sections 500, 501,
502 read with Section 114 of the Indian Penal Code.
4. It
appears, in the Divya Bhaskar newspaper, dated 18.06.2009, under the
head of in extortion case in Deesa, father and son are sent to
jail , a news item was published, suggesting that respondent No.2
and his son were involved in a criminal case of demanding extortion
money and the complainant had ultimately lodged the complaint before
the police, against them. It was the case of respondent No.2 that the
said news item was defamatory and thereby the accused and,
particularly, the petitioner committed the offences punishable under
Sections 500, 501, 502 read with Section 114 of the Indian Penal
Code.
5. In
the complaint, respondent No.2 has alleged that the said news item,
in the newspaper, carried defamatory news. The newspaper has wide
circulation and publication of the news in the said newspaper has
resulted into damage to the reputation of the complainant and his
son. The complainant was examined by the learned Magistrate on
06.10.2009, thereafter, the learned Magistrate, on 13.01.2010, was
pleased to issue process under Sections 500, 501, 502 read with
Section 114 of the Indian Penal Code.
6. The
learned Counsel for the petitioner stated that the narration in the
news item was exactly as the allegations made in the complaint
itself. The complaint is lodged against present respondent No.2
before the Deesa Police Station. The news item only reproduced the
contents of the complaint and the same would, therefore, not amount
to defamation. She relied on a decision of the learned Single Judge
of this Court in (Shri) Chimanbhai Somabhai Patel &
Others Vs. Mithu Bava & Another reported in 1984 GLH
(U.J.) 107, wherein it was observed that publication of a news item,
without twisting the same, to highlight circumstances which might not
be true, may amount to defamation. But, publication of an item of
news, without twisting the same or without an ulterior motive, can
never amount to defamation. A person, who is arrested in connection
with the smuggling of silver would be well-advised, not to take his
reputation to be so high that it can be dented by such a news item,
being published in the newspaper.
7. The
respondent No.2, appearing in person, vehemently contended that news
of his son being arrested, were false. Moreover, the newspaper did
not publish the counter allegations of respondent No.2 of being
ill-treated by the police authorities. He had also given prior notice
before lodging the complaint. He, therefore, prayed that no case is
made out for quashing.
In
support of his submissions, he relied on following decisions:
(1) In
the case of Ram Babu Vs. State of Madhya Pradesh &
Others reported in (2009)7 SCC 194, in which the Apex
Court stressed on the need for a reasoned order, while quashing the
complaint and the summons issued by the Court.
(2) In
Bibhuti Bhusan Das Gupta and Another Vs. State of West
Bengal reported in AIR 1969 381, in which the Apex Court
observed that even when the personal appearance of the accused is
dispensed with, examination of pleader in his absence, is not
sufficient compliance, except, where the accused is a company or the
juridical person.
I
do not see how the said decision would apply in the present case.
(3) In
the case of Kishor Kumar Gyanchandani Vs. G.D. Mehrotra &
Another reported in AIR 2002 SC 483, in which the Apex
Court observed that the power of the Magistrate, under Section 202 of
the Criminal Procedure Code, is not lost merely because he accepted
the final form submitted by the police, investigating the incident in
question, on the basis of an FIR.
This
question is not germane in the present proceedings.
8. Considering
the submission made and perusing the documents on record, it appears
that the news item, dated 18.06.2009, published by the petitioner is
substantially, if not entirely, based on a complaint dated
16.06.2009. In that view of the matter, question is whether the
offence of ‘defamation’ would be made out. The term ‘defamation’ is
defined under Section 499 of the Indian Penal Code, 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
expected, to defame that person.
9. There
are explanations and exceptions to the said provision, particularly,
the fourth exception, reads as under:
Explanation
4.- No imputation is said to harm a person’s
reputation, unless that imputation directly or indirectly, in the
estimation 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
loathsome state, or in state generally considered as disgraceful.
10. In
the present case, when I find that newspaper report is substantially
based on a complaint, lodged against respondent No.2, the newspaper
cannot be blamed for carrying any defamatory items. It is not as if
the news paper reported an incident allegedly taken place. Newspaper
only published news of filing of a complaint against respondent No.2
and his son and narrated the allegations made, therein. This was
also the view expressed by the learned Single Judge of this Court in
the case of (Shri) Chimanbhai Somabhai Patel &
Others (Supra).
11. Allegation
that the newspaper published a false report of the son of respondent
No.2 being arrested has to be examined on the basis of the impugned
complaint. It is the part of the complaint that such news were false
and defamatory. This averment of respondent No.2, therefore, cannot
be accepted.
12. In
the result, I find that the complaint does not disclose the offences
punishable under Sections 500, 501, 502 read with Section 114 of the
Indian Penal Code. Same is, therefore, QUASHED qua the
present PETITIONER, alone. Petition is disposed of,
accordingly.
(AKIL
KURESHI, J.)
Umesh/
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