2020 Supreme(Kar) 79

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.A. Patil, J.
Dadiba Kali Pundole @ Dadiba Pundole - Petitioner
Versus
M/s. Bid and Hammer Auctioneers Pvt. Ltd. - Respondent
Criminal Petition No.2343 of 2018
Decided On : 24-03-2020

Headnote:

Indian Penal Code - Sections 499 and 500 – Criminal Procedure Code - Section 482 - Constitution of India, 1950 - Article 32 – Quash of order - Court has no jurisdiction - Whether petitioner is having any intention or not is a matter which has to be gone into at time of trial - Whether an accused against whom a complaint is registered under various sections of IPC could be convicted for any of those offences depends upon evidence regarding existence of facts relevant to constitute those offences - Whether a class of persons not an isolated case into whose hands book article or story falls will suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds - Whether publication made in Mumbai Mirror constitutes an offence or not has to be analyzed only on basis of publication which has been made - Whether accused is having any intention or not is also a matter of evidence - Brief facts of case are that complainant is an owner of auction house - Complaint has been filed alleging that a news article has been published in Mumbai Mirror containing certain comments in said article - It is alleged in complaint that said comments affected business of respondent complainant and therefore complaint has been filed - On basis of said complaint a case has been registered and subsequently cognizance has been taken - Challenging same petitioner is before this Court - It is contention of learned Senior Counsel that four articles which have been published are not published by petitioner - Petitioner has given only his views and as such it does not amount to defamation as contemplated under Section 499 of IPC - It is her further submission that petitioner accused No.4 is neither editor writer nor author and he has not published said publications in Mumbai Mirror and as such he cannot be arrayed as an accused – Held, Court are of opinion that propositions laid down in English decisions dealing with libel that actual words alleged to be used must be stated in indictment cannot be applied on all force when dealing with cases of defamation by spoken words under Section 499 IPC - It will be highly desirable no doubt if actual words stated to have been used by an accused and which are alleged to be defamatory are reproduced by complainant - Actual words used or statements made may be reproduced verbatim by complainant if words are few and statement is very brief - But in cases where words spoken are too many or statements made are too long in court opinion it will be height of technicality to insist that actual words and entire statements should be reproduced verbatim - Object of having if possible actual words or statements before Court is to enable it to consider whether those words or statements are defamatory in nature - That purpose or object will be served if complainant is able to reproduce in his complaint or evidence in a substantial measure words of imputation alleged to have been uttered - If statements or words placed before Court by complainant are held to be not defamatory it will mean that complainant will have to lose – Therefore it is to his interest to get a proper adjudication from Court that as far as possible words spoken or statements actually made and which he alleges to be defamatory are before Court - But a complaint cannot be thrown out on mere ground that actual words spoken or statements made have not been stated in complaint - From point of view of accused also it is necessary that matters alleged to be defamatory in complaint must be so stated as to enable them to know nature of allegations that they have to meet - Learned Senior Counsel for petitioner that it is a general statement and he is making or speaking about art of Gaitonde and it is a general observation and fair comment when publication has been made with said remarks on one day before said auction that itself manifest to bring down business of complainant - Even as mentioned supra reference has also been made to shop of complainant - Under such circumstances whether it is a general statement or a fair comment said aspect requires evidence and at this stage this Court cannot hold a mini trial and cannot come to conclusion - When Section 499 of IPC specifically speaks about intention has to be ascertained only at time of trial - In that angle also contention of learned Senior Counsel for petitioner accused No.4 is not acceptable - Question as to what injury has been caused to complainant because of said publication has to be assessed on facts of case and it is a question of law and which would be decided by trial Court during trial - As already held mens rea aspect is also a matter of trial - But in decision quoted by learned Senior Counsel there is no specific legal injury caused to complainant and in that light Hon’ble Apex Court has given benefit and allowed petition - But in instant case no such situation is existing and in said case after trial said observations have been made - Now petitioner accused No.4 has approached this Court under Section 482 of Criminal Procedure Code Full material is not before this Court or before trial Court - In that light it is very difficult for this Court to arrive at any conclusion as to whether act of accused constitutes an offence or not - Facts of present case are different with facts in decision referred to by learned Senior Counsel for petitioner - In that light ratio laid down is not applicable to case on hand – Petition stands dismissed