While striking the right chord, the Allahabad High Court in a significant development has very rightly in Ranvijay Singh & Ors v State of UP & Anr in Case No. 284/2013 and Application u/s 482 cautioned the courts to be circumspect and judicious in exercising the discretion and issuing process. While cautioning so the Allahabad High Court has quashed the summoning order passed against the editorial staff of a newspaper in connection with a defamation case. Very rightly so!
To start with, this noteworthy and commendable order which was reserved on November 13, 2019 and delivered on December 20, 2019 by Justice Dinesh Kumar Singh of Allahabad High Court sets the ball rolling in para 1 wherein it is observed that, “This petition under Section 482 CrPC has been filed by the petitioners, who were working as Group Editor, Local Editor and Press Reporter, Sahara India Mass Communication, Lucknow, impugning the order of summoning dated 23rd February, 2010, under Sections 499, 500, 501 and 502 IPC passed by the Additional Chief Judicial Magistrate, Court No. 32, Lucknow in Criminal Complaint Case No. 2211 of 2010 ‘Ramveer Upadhaiya Vs. Jaibrat Roy and others’ instituted by the respondent no. 2. Further prayer has been made to quash the complaint itself.”
To be sure, para 2 then points out that, “The respondent no. 2, at the relevant point of time, was the Minister in the State Cabinet, Department of Energy. A news item was published on page 11 of the Rashtrya Sahara, Daily Hindi Newspaper on 11th September, 2009.” In this same para the offending news item is then described in detail.
Needless to say, para 3 then states the background of the case by stating that, “The basis of the aforesaid news item was a letter dated 12th September, 2008 written by Mr. Krishna Gopal, Special Secretary, Confidential Department. This letter was sent on behalf of the Chief Minister to Mr. J.N. Chamber, Principal Secretary, Energy (Electricity Department), and subsequent reminder letter dated 22nd July, 2009 sent by Mr. Krishna Gopal, Special Secretary to Mr. Navneet Sehgal, Secretary, Department of Energy, Government of Uttar Pradesh, asking for inquiry report on the charge of demanding Rupees Ten Lakhs from the Chief Engineer, on refusal transferring him, and putting him under suspension. Copies of the letters dated 12th September, 2008 and 22nd July, 2009 as well as the alleged complaint made by Mr. R.K. Kashyap on 3rd August, 2008 to the Chief Minister, Government of U.P. having been placed on record as Annexure-5 to the petition.”
To put things in perspective, para 4 then illustrates explaining that, “Mr. R.K. Kashyap was working as Chief Engineer, Western Electricity Disturbing Corporation, Meerut. In the aforesaid complaint, it was alleged that the respondent no. 2, the Minister, Energy Department, had demanded Rupees Ten Lakhs as bribe from him to remain on the post. It was also alleged that the respondent no. 2 had told him that substantial part of the said amount would go to the Chief Minister. It was further alleged that similar amount of Rupees Ten Lakhs, as a bribe, was demanded from Mr. K.N. Upadhyay, Superintending Engineer – M.M., working under his subordination, and this amount was paid by Mr. K.N. Upadhyay to the Minister. It was further alleged that similar amount of Rupees Ten Lakhs, as a bribe, was demanded from Mr. K.N. Upadhyay, Superintending Engineer – M.M., working under his subordination, and this amount was paid by Mr. K.N. Upadhyay to the Minister. It was further alleged that since the complainant was an honest officer, he could not give the bribe amount as demanded by the Minister and, therefore, firstly he was transferred to Lucknow, and thereafter, he was placed under suspension on false charges. Copies of the aforesaid letter were sent to the President and Prime Minister besides news channels and newspapers.”
As it turned out, para 5 then discloses that, “A news item with photograph of the Minister, relating to charge of demanding bribe money of Rupees Ten Lakhs from the Chief Engineer, was published on 10th September, 2009 in Daily Hindi Newspaper ‘Deshbandhu’ had already been published before the offending news item was published in ‘Rashtriya Sahara’ on 11.09.2009. In the aforesaid news item published in ‘Deshbandhu’, it was also stated that one M.L.A. Mr. Anil Kumar Singh Yadav, belonging to Samajwadi Party, had also sent letters to the Prime Minister and Chief Minister, and demanded action against the Minister. He also demanded C.B.I. inquiry into the matter of corruption by the respondent no. 2. The said news item also contained statement of Congress Spokesperson, Mr. Akhilesh Pratap Singh and Chief Spokesperson of B.J.P., Mr. Hridaya Narain Dixit.”
What’s more, para 6 then reveals that, “Mr. O.P. Rai, Information Officer, sent letter dated 15th October, 2009 to the News Editor, Rashtriya Sahara, Lucknow, requesting on behalf of the complainant to publish contradiction of the news published on 11th September, 2009 in Rashtriya Sahara, stating therein that the Chief Engineer, Mr. R.K. Kashyap had written letter dated 16th March, 2009 to Chairman and Managing Director of Power Corporation, Shakti Bhawan, Lucknow, mentioning therein that he had not given any complaint against the Minister to the Chief Minister. The rebuttal/contradiction to the news item, as requested by Mr. O.P. Rai on behalf of the respondent no. 2, was published in the Daily Hindi Rashtriya Sahara on 22nd October, 2009 on the same page.”
While continuing in the same vein, it is then pointed out in para 7 that, “Despite the aforesaid publication of the rebuttal/contradiction, as desired on behalf of the complainant, the complaint in question was filed on 2nd February, 2010. After the statements under Sections 200 and 202 CrPC were recorded, the learned Magistrate, after taking cognizance on the complaint, had summoned the petitioners vide order of summoning dated 23rd February, 2010.”
Going forward, it is then envisaged in the next para 8 that, “The allegations in the complaint, in short, are that the accused, including the petitioners, had colluded with each other, and published the aforesaid news item, with an intention to malign and denigrate the image and reputation of the complainant-respondent no. 2 as well as the State of Government in the eyes of public in general. The alleged complaint by Mr. R.K. Kashyap, Chief Engineer was false, which would be evident from the letter dated 4th February, 2009 written by Mr. R.K. Kashyap, addressed to the Chairman and Managing Director of the U.P, Power Corporation, Lucknow, stating therein that he had not made any complaint of corruption against the respondent no. 2, and he had also given his specimen signatures in Hindi and English both. It was also stated in the complaint that Mr. R.K. Kashyap sent a letter dated 16th March, 2009 stating therein that the respondent no. 2 was not responsible in any manner in his suspension etc; and specifically denied that he had made any complaint against him. It was further stated that the allegation of bribery against the respondent no. 2 was totally false, baseless, and he never tried to harass anyone, including Mr. R.K. Kashyap. Mr. R.K. Kashyap was placed under suspension by the competent Authority for valid reasons. It was also alleged that the complainant had good reputation in the Government as well as public at large, and news item was published to defame him, Power Corporation, and the State Government.”
After hearing both sides and going through the petition, the Bench then observes in para 9 that, “Heard Mr. Janardhan Singh, learned counsel representing the petitioners, Mr. Manoj Kumar Dwivedi, learned counsel representing respondent no. 2 as well as learned Additional Government Advocate representing respondent no. 1-State, and perused the petitions, including the Annexures attached therewith.”
Briefly stated, it is then enunciated in para 13 that, “Freedom of speech and expression in a country governed by rule of law and written Constitution is paramount importance to give vibrancy to the democracy. The Supreme Court in Subramanian Swamy Vs. Union of India (supra) in paragraphs 98 to 120 has dealt with the significance of freedom of speech and expression in a constitutional democracy and also taken note of the judgments of the Supreme Court and the foreign judgments on this point. The freedom of speech and expression has been elevated by the Supreme Court, regard being made to the democratic and constitutional goals as enshrined in the Constitution. It is prime duty of the press to expose the Government and its functionaries, if they indulge in mis-governance or acts against the law and constitutional principles. If the press finds itself being cycled by the threat of prosecution, it cannot perform its duty, and it will have a chilling effect on the very right of free speech and freedom as guaranteed under Article 19(1)(a) of the Constitution.”
To put it succinctly, it is then stated in para 14 that, “It has to be seen, whether the petitioners would be said to have requisite mens rea in defaming the complainant while publishing the offending news item in Rashtriya Sahara Newspaper on 11th September, 2009, and whether they have taken due care and caution in publishing news item, and thereafter the rebuttal on 22nd October, 2009 on the same page, on behalf of the respondent no. 2. For the offence of criminal defamation, the burden is on the Magistrate to scrutinize the complaint on all aspects, and he is required to satisfy himself that the ingredients of Section 499 IPC are satisfied. The Magistrate must apply his judicial mind on the complaint, and facts of the case, before taking cognizance and issuing process, summoning the accused.”
Be it noted, para 16 stipulates that, “The second aspect in the present case, which is required to be considered, is whether the complaint, on behalf of the respondent no. 2, who was the Minister in the State Cabinet of Uttar Pradesh, was maintainable in view of provisions of the Section 199(2) CrPC.”
It would be imperative to now mention that para 17 then observes that, “To decide the first issue, it would be required to take note of the facts that before the offending news item was published on 11th September, 2009 in ‘Rashtriya Sahara’ Hindi Daily, ‘Deshbandhu’ Hindi Daily had already carried out the story along with photograph of the complainant/Minister. The news item published in ‘Rashtriya Sahara’ was based on two letters. The first letter dated 12th September, 2008 written by Mr. Krishna Gopal, Special Secretary, Confidential Department sent on behalf of Chief Minister to the Principal Secretary, Department of Energy and, subsequent reminder dated 22nd July, 2009 sent to the Secretary, Department of Energy, demanding inquiry report in respect of demand of bribe of Rupees Ten Lakhs from the Chief Engineer, and on his refusal to pay, transferring him and putting him under suspension. If the news item is closely scrutinized, there is no imputation, which has been made by the petitioners against the respondent no. 2. The news item was factually based on the two letters. If there is no imputation, it cannot be said that the offence of defamation has been committed by the accused. In the complaint it has not been alleged that these two letters are forged. If these two letters are not denied, the news item cannot, in any manner, be said to be defamatory. Further, on behalf of respondent no. 2, the rebuttal was published in the newspaper on the same page in equal prominence.”
More importantly, para 18 then envisages that, “It is also important to note that it was not for the first time that the respondent no. 2 was in news, earlier a three page report regarding corruption by him was published in the news magazine ‘Akhir Kab Tak’ which showed the misconduct of the Minister. If having come to know the two letters written from the office of the Chief Minister regarding the inquiry on allegation of demand of bribe of Rupees Ten Lakhs and for non-payment, harassment of the Chief Engineer, had the news item not been published, the newspaper would have failed in its duty. I, therefore, find that the news item was not offending at all and, therefore, the Magistrate ought not to have taken the cognizance and summon the petitioners as accused.”
Moving on, it is then elaborated upon in para 19 stating that, “Regarding second aspect, it is specifically provided under Section 199(2) CrPC that in respect of the Minister etc. the complaint can be filed through a Public Prosecutor in the Court of Session. Here, the respondent no. 2 was a Minister in the State Cabinet of Uttar Pradesh, and since, the complaint was filed by him in the Court of learned Magistrate, the Magistrate ought to have considered whether the complaint was maintainable before him or not. In my view the complaint was not maintainable before the Magistrate as there is specific provision that the complaint should be filed through a Public Prosecutor in the Court of Session, if defamation is alleged in respect of performance of the public duty by the person mentioned in Section 199(2) CrPC. In the present case, the news item was published with respect to his functioning as the Minister of Energy in State Government, the complaint could have been filed only through a Public Prosecutor, after taking sanction as prescribed.”
Most importantly, para 20 then minces no words in holding that, “It is well settled that the judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising the discretion and only after taking all the relevant facts and circumstances into consideration should issue the process. The judicial process should not be an instrument in hands of the private complainant as vendetta to harass the person. The criminal law should not be set into motion as a matter of course as held in the case of Pepsi Foods Ltd. And another Vs. Special Judicial Magistrate & others, (1998) 5 SCC 749.”
Finally, it is then held in the last concluding para 21 that, “Considering all aspects, and the facts and circumstances of the case, the present petition is allowed. Consequently Case No. 2211 of 2010 ‘Ramveer Upadhaiya Vs. Jaibrat Roy and others’ instituted by the respondent no. 2, including the order of summoning dated 23rd February, 2010, under Sections 499, 500, 501 and 503 IPC passed by the Additional Chief Judicial Magistrate, Court No. 32, Lucknow are quashed.”
To conclude, Justice Dinesh Kumar Singh of Allahabad High Court in this latest, landmark and laudable judgment very rightly sends out a loud and clear message that judicial process should not be an instrument of oppression or needless harassment. It also makes it clear that no private person should be allowed to use judicial process as an instrument of vendetta in their hand to harass any other person! Very rightly so!
Sanjeev Sirohi