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High Court Of Delhi
S.NIHAL SINGH - Appellant
Versus
ARJUN DAS - Respondent
CRIMINAL APPEAL 83 of 1982
Decided On : 09/24/1982
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.
( 1 ) THE next submission made by the learned counsel for the petitioners is that the impugned order betrays total non application of judicial mind by the learned Magistrate. This contention is sub divided into three parts. In the first instant it is urged that on a bare reading of the news item in question it is manifest that Miss Khiangte had lodged a complaint against the respondent at Vinay Nagar police station and a case of obstructing public servant in the performance of his official duties was registered against him. Thereafter she submitted an inspection note to the higher authorities giving details of the incident. This could b; well noticed by the learned Magistrate while going through the offending news items. It was thus obligatory on the part of the Magistrate to call for both these documents, one from the police station which was in his own jurisdiction and the other from Delhi Administration in order to verify true facts. The argument put forward precisely is that while holding a preliminary enquiry u/s 202, the Magistrate need not confine himself to the evidence adduced by the complainant and he is free to hold any kind of enquiry which he deems fit in order to as- certain the truth/falsehood of the allegations contained in the complaint before dismissing the same u/s 203 or issuing the process u/s 204 of the Code. On. the other hand the counsel for the respondent has urged vehemently that no obligation was cast on the Magistrate to summon the FIR or the inspection note as urged by the petitioners counsel. He has canvassed that the Magistrate could not be expected to summon documents which would constitute virtually the defence of the accused inasmuch as it would have amounted to prejudging the guilt/innocence of the accused.
( 2 ) ON a bare reading of S. 202 of the Code, it is manifest that the Magistrate may either enquire the case himself or direct the enquiry to be made by a police office or by such officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The object of an enquiry or investigation under this section is to ensure that no person shall be compelled to answer a criminal charge unless the court is satisfied that there is prima-facie case for proceeding and issuing a process against the accused person. In other words enquiry/ investigation envisaged therein is to prevent abuse of the process of court by throwing out at the threshold a false and frivolous complaint. As observed by the Supreme Court Chandra Deo Singh V. Prakash Chandra Bose, AIR 1963 SC 1340, "it is the bounden duty of the Magistrate while making an equiry to elicit all facts not merely with a view to protect the interests of an absent accuse 1 person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial". The later observation was apparently made by the Supreme Court in the context of the question whether the accused has a right to take part in the proceedings at the stage of enquiry us 202 and their Lordships held in unequivocal terms that "he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so". The learned counsel for the respondent has invited my attention to the following further observations which were made by their Lordships while dealing with this aspect of the matter.
"no doubt, as stated in sub-sec. (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which whould naturally mean. the complaint itself, the statement on oath made
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