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CR.MA/10239/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10239 of
2010
=========================================================
TAPAN
B JAISWAL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SR YADAV for
Applicant(s) : 1,
MR KARTIK PANDYA, ASST. PUBLIC PROSECUTOR for
Respondent(s) : 1,
Party-in-person, Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 13/10/2010
ORAL
ORDER
RULE.
Mr. Kartik Pandya, learned, APP waives service of notice of rule on
behalf of respondent No.1-State and respondent No.2, who is present
in person, waives formal service of rule, for himself.
1. Petitioner is the
original accused. He is Editor of one newspaper, who is shown as
accused No.1 in a complaint, bearing Criminal Case No. 2045 of 2009,
filed before the Judicial Magistrate, First Class, Deesa, by
respondent No.2 herein, alleging the offences punishable under
Sections 385, 386 read with Section 120-B of the Indian Penal Code.
2. The complaint is
based on a newspaper item, published in the said daily on 18.06.2009.
On the premises that the said newspaper article contained defamatory
and untrue statements about the complainant and his son, said
complaint for defamation is lodged by respondent No.2. The news item
suggested that a criminal case is registered against respondent No.2
and his son, alleging that they are involved in a criminal case of
extortion and certain other allegations were also made against them.
3. It is the case of
respondent No.2 that some of the details of the said newspaper
article are contrary to the contents of the criminal complaint for
extortion, filed against him and his son. For all such inaccuracy
and misleading statements, respondent No.2 herein, filed the impugned
complaint.
4. The case of the
present petitioner is that the newspaper article was based on the
complaint filed before the police, against respondent No.2 and his
son, and there is no inaccuracy in the same.
5. Respondent No.2,
appearing in person, vehemently contended that the newspaper did not
publish his counter allegations of being ill-treated by the police
authorities.
6. In
support of his case, respondent No.2 relied
on following decisions:
(1)
BIBHUTI BHUSAN DAS
GUPTA & ANOTER VS. STATE OF WEST BENGAL ,
reported in AIR(SC)(1969)381;
(2)
S.B. SAHA &
OTHERS VS. M.S. KOCHAR ,
reported in AIR(SC)(1979)1841;
(3)
KISHORE KUMAR
GYANCHANDANI VS. G.D. MEHROTRA ,
reported in SCC 10(2001)59;
(4)
KISHORE KUMAR
GYANCHANDANI VS. G.D. MEHROTRA & ANOTHER ,
reported in AIR(SC)(2002)483;
(5)
RAM BABU VS. STATE
OF MADHYA PRADESH & OTHERS ,
SCC 7 (2009) 194.
7. I have heard learned
Counsel for the petitioner, learned APP for respondent No.1-State and
respondent No.2, who is present in person.
8. I, however, find
that, in similar circumstances, a complaint filed against another
newspaper, for publication of similar news item, by respondent No.2,
came to be quashed, vide order dated 23.08.2010, rendered in Criminal
Miscellaneous Application No.3146 of 2010, which reads as follows:
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.
9. From the above, it
is clear that the accusations are similar, though, some minor
differences of statements made in the newspaper publication. The
accusations against the present petitioner are also similar. I see no
inaccuracy in the statements in the newspaper publication. They are
based, entirely, on the complaint, which is lodged before the police
station, against respondent No.2 and his son. No allegations are made
out disclosing the offence of defamation. No case for defamation is,
therefore, made out.
10. In
the result, Criminal Case No. 2045 of 2009,
filed before the Judicial Magistrate, First Class, Deesa, is QUASHED
qua the present PETITIONER, alone. Rule is made
absolute to the aforesaid extent.
(AKIL
KURESHI, J.)
Umesh/
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