The publication of a news item or article in a newspaper is not sufficient to establish a prima facie case against a person for defamation unless it is shown that the person actually made the alleged utterances.

P.K.Sarin, J.

1. Supplementary affidavit filed on behalf of the petitioner.

2. Heard the learned Counsel for the parties.

3. By this application under Sec. 482 of the Code of Criminal Procedure the petitioner seeks quashing of the order dated 30-5-1996 passed by Judicial Magistrate, First Class, Motihari, in Complaint Case No. C-421 of 1996, Trial No. 36 of 1996 by which the learned Magistrate has taken cognizance against the petitioner and one other co-accused for the offence punishable under Secs. 500, 501, 502 and 504 of the Indian Penal Code.

4. It appears that the opposite party No.2 filed a complaint (copy at Annexure-1) alleging that in the publication of a news item in Hindustan Times the present petitioner is attributed with the utterance of a word "Kukoor" for the Koeri and Kurmi castes The opposite party No. 2 is an Advocate and is Koeri by caste. According to the allegations made in the complaint by publication of the said news item the petitioner and his caste has been lowered down in the esteem of the society and they have been defamed and it has caused mental agony as well. In the complaint the present petitioner was made as accused No.1 while the "Editor, The Hindustan Times, Patna, Bihar", has been named as accused No. 2. The news item in question has been field as Annexure-1; The learned Magistrate, after examining the complainant and the four witnesses, examined on behalf of the complainant, found a prima facie case to be made out and he decided to proceed with the trial and directed the complainant to file necessary requisites (for summoning the accused). Feeling aggrieved by the said order the petitioner, who is Chief Minister of the Government of Bihar, has filed the present application for quashing the cognizance order.

5. It has been contended on behalf of the petitioner that neither in the allegations made in the complaint nor in the evidence recorded by the learned Magistrate, under Sec. 202 of the Code of Criminal Procedure, there is any averment that the impugned utterance was made by the present petitioner in the presence of the witnesses. It is contended that there is no evidence on record to show that petitioner actually, at any time, made those utterances and the entire complaint and the evidence is only in respect of the publication made in newspaper. It is contended that the publication of any news item or article in newspaper is not sufficient to fasten any liability on the petitioner in respect of the contents of that news item or article.

6. Copies of the statements of the witnesses examined on behalf of the complainant before the learned Magistrate have been filed with the supplementary affidavit. Out of four witnesses examined before the learned Magistrate, P.W. 4 is only formal witness. He has not deposed anything about the utterance made by the present petitioner. Rest of the three witnesses have only stated that they read the newspaper and by reading the concerned article in the newspaper they feel that they and their caste have been lowered down in the esteem of the society. Their statements show that the word "Kukoor" was not uttered by the petitioner in their presence and they do not know before whom such utterance was made by the petitioner. Thus, it is evident, that the witnesses, who have been examined, do not have any knowledge whether or not the petitioner had actually uttered the objectionable word "Kukoor" for Koeri and Kurmi caste. The entire allegations in the complaint and the staements of the witnesses are only with reference to the news item or article, published in The Hindustan Times. Annexure-1 is the copy of that article. Unless it is shown that the objection able word had been used by the petitioner, the petitioner cannot be prima facie found to have committed the offence punishable under Secs. 500, 501, 502 and 504 of the Indian Penal Code. A person cannot be said to have committed an offence merely because some article or news item is published attributing