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DELHI HIGH COURT
Sultan Singh, J.
S. Nihal Singh and others Petitioners
versus
Sh. Arjan Das Respondent
Criminal Revision Nos. 83 and 84 of 1982
Decided on 24-9-1982
For the Petitioners: Mr. Anil Diwan with Mr. Arun Jaitley, Advocates.
For the Respondent: Mr. R. N. Mittal, Advocate.
Held evidently there is mis-description about Shri Goenka being owner of the newspaper and it has led the trial court to summon him to face trial. Had the true position been; revealed to the trial court this order, in all probability, would not have been made. Needless to say that as Chairman of the company Shri Goenka can be held liable for the publication of the offending news items only if it is shown that he was somehow concerned with the publication of the defamatory news items. It is highly doubtful that he can be asked to answer the charge of defamation merely because he happened to be the Chairman of the company owning the newspaper without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company. Intention on the part of the accused to harm the reputation or the knowledge or reasonable belief-that an imputation will harm the reputation of the person concerned is an essential ingredient of offence under section 499 Indian Penal Code but such evidence is totally missing in the instant case. Under the circumstances the impugned order as regards Shri Goenka cannot be sustained on this short ground. (Para 7)
(ii) Indian Penal Code, 1860-Sections 499,500/501-Press any Registration of Books Act, 1867-Section 7 and Declaration in Form I-Complaint regarding defamatory news item in "the Indian Express"-Declaration showing S. K. Kohli for printer and publisher, S. Nibal Singh and Prabhash Joshi as Editor-in-Chief and Asstt. Editor respectively-Names of Arun Shorie and A. N. Dhar not appearing in declaration but were executive editor/editor of the Express News Service-Magistrate ordering summonses to be issued to all five-Whether correct? Yes for S. K. Kohli, Nihal Singh, Prabhash Joshi, but not for Arun -Shorie and A. N. Dhar.
Held the printer or the publisher as the case may be who has made a declaration under the Act and the editor whose name appears on the copy of the newspaper shall be presumed to be aware of what is printed and published in the issue of the paper. The declaration is prima facie evidence of the publication by the editor of all the news items in the paper. He will not be absolved for the publication of objectionable matter, by the mere fact that in the daily routine he had asked the editor/sub-editor etc to select the news items. The term 'editor' is defined in the Act to mean person who controls the selection of the matter that is published in a newspaper. In the instant case the declaration printed at the bottom of the back page of the newspaper shows that the newspaper had been printed 'and published for the proprietors Indian Express Newspapers (Bombay) Private Limited by S. K. Kohli, petitioner No. 5 and S. Nihal Singh and Prabhash Joshi are Editor-in-Chief and Resident Editor respectively of the newspaper. Ex facie a resident editor will be an associate of the Editor-in-Chief in the selection of news items and to that extent he is answerable on a charge of defamation licence in view of the foregoing provisions of law a presumption will arise against all three of them that they are printer, publisher, Editor-in-Chief and Resident Editor respectively of the newspaper and as such they are aware of the contents of offending news items. However, it is difficult to draw such a presumption in the case of other petitioners viz. Arun Shorie, petitioner No. 2 and A. N. Dhar, petitioner No. 4. Their names do not find place in the declaration printed on the newspaper itself and there is no iota of evidence to show that they are in any manner concerned with the collection, control or selection of the matter printed in the newspaper. Their designations as Executive Editor/Editor of the Express News Service will not per as warrant an inference that they are in any way responsible for the selection of the material. (Para 10)
A.I.R. 1968 S.C. 110 relied on.
That intention on the part of the accused to harm the reputation or the knowledge that it will harm the reputation is an essential ingredient of offence under Section 499 Indian Penal Code. There is not a shed of evidence on record to warrant an inference of guilty intention/knowledge on the part of the either Shri Shorie or Shri Dhar. Hence the impugned order cannot be sustained against them too. (Para 11)
(iii) Indian Penal Code, 1860-Sections 499, 500/501-Criminal Procedure Code, 1973-Section 202-Complaint for defamation by a news item in the newspaper-News item alleged to be based in a F.I.R. and Inspection Note of Public Servants-Whether there is fetter on the power of Magistrate while holding a preliminary enquiry under Section 202 to summon the F.I.R. or the Inspection Note as urged by opposite parties? (No)-Magistrate non-summoning whether amounts to non-application of Judicial Mind? (No)
Held as I read Section 202(1), I am unable to find any such fetter on the power of the Magistrate while enquiring into the case himself with a view to decide whether or not there is sufficient ground, for proceeding. Indeed an alert and experienced Magistrate with a little circumspection and sagacity can see through the game of the complainant and can call for any documents or summon any witnesses who is in his opinion will be able to throw light on the case and help in arriving at a conclusion whether the complaint is devoid of any substance or a prima facie case is trade out. There is no strait-jacket rule; If there is any hesitation or doubt in the mind of the court, it can summon any witnesses or call for any documents which in the opinion of the court can aid the court in confirming or removing such hesitation or doubt. Of course, the discretion vesting in him in this respect has to be exercised judicially.
The only limitation being that he cannot convert the enquiry into a full scale trial. Of course, he is under a statutory obligation to examine the complainant and the witnesses, if any, produced by him. In this view of the matter, therefore, the Magistrate would have been well advised to call for the First Information Report and the inspection Dote made by Miss Khiangte to verify if the offending news items were substantially a faithfully reproduction of the allegations made by Miss Khiangte in her official capacity against the respondent or not. However, omission on his part to do so will not necessarily be inferential of either non-application of his judicial mind or failing to perform his duties so as to vitiate the enquiry. (Para 15)
A.I.R. 1963 S.C. 1340 relied on.
(iv) Indian Penal Code, 1860-Sections 499, 500/501-Criminal Procedure Code, 1973 - Section 202-Complaint for defamation-Magistrate ordering, to proceed without reproducing the offending excerpts with exactitude-Whether order suffer from the vice of non-application of mind? (No)
Held it is no doubt true that the learned Magistrate has not reproduced the offending excerpts from the report appearing in the newspaper with exactitude but that will not necessarily reflect non-application of the judicial mind. It may as well be for the reason that he did not care to compare and tally the quotations in the impugned order with the original news items. At any rate this lapse on his part will not warrant an inference that the misquoting has stemmed from misreading of the offending news items. (Para 16)
(v) Indian Penal Code, 1860-Sec. 499 exceptions 3 & 7-Criminal Procedure Code 1973-Section 202-Complaint for defamation-Offending news item based on some public documents-Whether a defence plea based on exceptions 3 and 7 to Section 499 Indian Penal Code (Fair comment and good faith) can be considered and spelt out by the Magistrate even at the stage of preliminary enquiry under Section 202 of Criminal Procedure Code i.e. even before such a plea is raised by the accused? (No)
Held in the instant case the offending news items do not involve an element of comment by the author or the editor of the news items. It simply purports to be a report based on the complaint and the inspection note made by Miss Khiangte. It is, therefore, highly doubtful that Third Exception can be pressed into service by the petitioners. The only other exception on which the petitioners defence hinges is Exception 9. This exception affords protection when a defamatory statement is made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. This exception is wide enough to cover not only such allegations of fact as could be proved true but also expression of opinion and personal inferences. (Para l8)
The stage for deciding whether the petitioners acted in good faith and for public good or not has not arrived yet. The question can, therefore, be decided only after the plea of the accused is recorded. Needless to say that the complainant shall be entitled to demolish the defence by whatever evidence he chooses to adduce in this behalf. (Para 22)
Case law discussed.
JUDGMENT
J. D. Jain, J. - On 4th November, 1981 the New Delhi Edition of "The Indian Express", a leading newspaper published from various important stations in the country including New Delhi (in short the 'Newspaper') carried a news item titled 'Cong-I leader blocks checking of foodstuff', (Annexure-'B'). To be concise the newspaper reported that officials of Delhi Administrator led by an SDM, Miss Khiangte, an IAS Officer, had gone to the Laxmibai Nagar Market on the evening of Tuesday, the 3rd November, 1981, for a surprise checking of foodstuff. The team of officials from the Food and civil Supplies Department had already collected a few samples of edible oil in glass jars from a shop when the respondent Shri Arjun Das reportedly appeared on the scene. He asked them not to collect samples and he allegedly snatched a few jars and threw them. The official leading the team then went to the Vinay Nagar Police Station and lodged a complaint to that effect (Annexure-'B').
2. On the next following day viz. 5.11.1981 the newspaper published further details of the aforesaid incident as per inspection note submitted by Miss Khiangte to the Delhi Administration on 4.11.1981. The news item carried the caption 'Police case against Arjun Das' and alluding to the complaint lodged by her with the police, it reported that:
"Mr. Arjun Das had used abusive language and intimidated her and a team of seven inspectors of the Directorate for Prevention of Food Adulteration (PFA) when they had gone to the Laxmibai Nagar Market for a Surprise checking. Miss Khiangte said that Mr. Arjun Das had asked the checking party not to collect oil sample from a shop and snatched the sample lifted from the shop. Miss Khiangte had conducted the inspection in her capacity as Public Health Authority (PHA)".
3. Some more excerpts from the said report are, extracted below for ready reference:
"Miss Khiangte said that Mr. Arjun Das had appeared on the scene and threatened that he would not, allow her to take any samples. She said that Mr. Arjun Das had described her as "inhuman" and paid no heed to her contention that sparing one shop during the inspection would mean discrimination. She said when the crowd and Mr. Arjun Das had started using abusive language she contacted the police control room for help”.
The newspaper further reported as below:
"A reliable source in the Food and Civil Supplies Department said that a team of civil supplies officials was also treated in a similar fashion by Mr. Arjun Das and his followers on the eve of Diwali. He said the team had gone to check the distribution at fair price shops in the Laxmibai Nagar area".
6. On 6.11.1981 the respondent instituted a complaint against S/Shri Ram Nath Goenka, petitioner in Cr. R. No. 84/82, S. Nihal Singh, Arun Shorie, S. K. Kohli, A. N. Dar and Prabhash Joshi, petitioners in Cr. R. No. 83/84 under Section 500 of the Indian Penal Code. He alleged that on the evening of 3.11.1981 when he was sitting at his shop in Laxmibai Nagar market some shopkeepers came to him and told him that some sample had been lifted from M/s Raj Stores by Food Inspector and the lady S.D.M. in the absence of its owner who was lying in a precarious condition in the hospital and they were insisting that Shri Mukesh son of the shopkeeper who had come after the sample had already been lifted sign all the prescribed papers but Mukesh was protesting saying that since he was not present when the sample had been lifted the prescribed forms could be signed only by the servant who was then present at the counter. As the request of Shri Mukesh appeared to be reasonable he i.e. the respondent accompanied the other shopkeepers of the locality and made a request to the S.D.M. and the Inspectors very politely to give due consideration to the request of Shri Mukesh. However, the S.D.M. without any provocation snubbed him and directed him to leave the spot. Thereupon he left the spot and returned to his shop, even though the high handed ac
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