Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(SC) 999

SUPREME COURT OF INDIA
A.K. SIKRI AND ABHAY MANOHAR SAPRE, JJ.
ABHIJIT PAWAR - APPELLANTS
VERSUS
HEMANT MADHUKAR NIMBALKAR & ANR. - RESPONDENTS
CRIMINAL APPEAL NO. 1225 OF 2016 (ARISING OUT OF SLP(CRL.) NO. 9318 OF 2012) WITH CRIMINAL APPEAL NO. 1226 OF 2016 (ARISING OUT OF SLP(CRL.) NO. 9860 OF 2012)
Decided On : 14-12-2016

Advocates Appeared:
For the Appellants :Ashok Desai, Sr. Adv., Sidharth Luthra, Sr. Adv., Ms. Shyel Trehan, Ms. Anu Bindra, Ms. Liz Mathew, Ms. Himanie Katoch, Ms. Akshita Sachdeva, Vishwajit Singh, Advocates.
For the Respondent:Vishwajit Singh, Nishant Ramakantrao Katneshwarkar, Advocates.

IMPORTANT POINTS
Requirement of conducting enquiry or directing investigation before issuing process u/s 202 CrPC is not an empty formality.
In absence of name of a person in the declaration there would be no presumption against that person u/s 7, Press Act.
Pure question of law can be raised at any stage of proceedings, more so, when it goes to the jurisdiction of the matter.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 202 – Accused residing in an area beyond jurisdiction of the Magistrate – Magistrate obliged to apply his mind and satisfy himself that a prima facie offence is made out – Requirement of conducting enquiry or directing investigation before issuing process not an empty formality – Instantly, the summoning order not reflecting any such inquiry qua the appellants – Not sustainable. (Para 22, 23, 24, 25, 26)
       (2014) 14 SCC 638; (2016) 1 SCC (Cri) 124; (2013) 2 SCC 488 – Relied upon
       (2016) 1 SCC 221; (2010) 1 SCC 479; (2000) 2 SCC 230; AIR 1963 SC 1430 – Referred
       (b) Press and Registration of Books Act, 1861 – Section 7 – Editor – Names of appellants not appearing in the declaration – Magistrate not applying his mind keeping in view provisions of section 7 – In absence of names in the declaration there would not be any presumption against the appellants u/s 7. (Para 27)
       Crl. Misc. No. 30154/2010(P&H); (2002) 6 SCC 670 – Referred
       (c) Administration of justice – Raising a plea for the first time before appellate court – Pure question of law can be raised at any stage of proceedings, more so, when it goes to the jurisdiction of the matter. (Para 28)
       (2011) 12 SCC 695 – Relied upon
       Facts of the case:
       On 18th March, 2009, a police squad working under the Lokayukta of Karnataka State, raided certain places and house of certain police officers including that of Hemant Madhukar Nimbalkar (the 'complainant'). After the said raid, the Lokoyukta held a press conference in which he stated that the complainant, who was an IPS Officer and posted as Superintendent of Police with charge of anti-terrorist squad, had collected assets in the region of Rs. 250 crores. In the process, the Lokayukta discussed the details of the raid on the properties belonging to the complainant situate in Mumbai, Kolhapur and Belgaum. The press statement issued by the Lokayukta was widely reported the very next day in a number of prominent national as well as local newspapers, like Indian Express, Hindu, Times of India etc.
       Sakal Newspaper, which is a Marathi newspaper also carried and published this news item.
       The complainant, feeling agitated by the aforesaid publications in different editions of Sakal newspaper, filed the complaint before the Chief Judicial Magistrate, Kolhapur under Section 501, 502 and 504 read with Section 34 of the Indian Penal Code on 5th November, 2009. In this complaint apart from the four editors of the four editions of the newspaper at Kolhapur, Belgaum, Pune and Nasik, Mr. Abhijit Pawar ('A-1), Managing Director of Sakal Newspaper and Mr. Pratap Rao Govind Rao Pawar ('A-2), Chairman of this group of Newspapers (father of Abhijit Pawar) were also arrayed as accused persons.
       The trial court issued process against all the accused persons on 24th November, 2009.
       All the accused persons challenged that order by filing criminal revision before the Sessions Court which was dismissed.
       As A-1 did not appear before the trial court even after the dismissal of the criminal revision application, bailable warrants were issued against him.
       Both A-1 and his father, A-2 approached the High Court by way of their respective criminal writ petitions. While the writ petition of A-1 has been dismissed, that of A-2 was allowed.
       Finding of the Court:
       Requirements of section 202 CrPC have not been complied with and provisions of section 7 of the Press Act have not been kept in mind while issuing process.
       Result: Criminal appeals allowed.

JUDGMENT

A.K. Sikri, J.

Leave granted.

2. On 18th March, 2009, a police squad working under the Lokayukta of Karnataka State, raided certain places and house of certain police officers including that of Hemant Madhukar Nimbalkar (hereinafter referred to as the 'complainant'). After the said raid, the Lokoyukta held a press conference in which he stated that the complainant, who was an IPS Officer and posted as Superintendent of Police with charge of anti-terrorist squad, had collected assets in the region of Rs. 250 crores. In the process, the Lokayukta discussed the details of the raid on the properties belonging to the complainant situate in Mumbai, Kolhapur and Belgaum. The press statement issued by the Lokayukta was widely reported the very next day in a number of prominent national as well as local newspapers, like Indian Express, Hindu, Times of India etc.

3. Sakal Newspaper, which is a Marathi newspaper also carried and published this news item. Kolhapur edition of this newspaper dated 19th March, 2009 records the version of the Lokayukta. Likewise, statements given by the Lokayukta also appeared in Belgaum, Pune, Nasik and Aurangabad editions of Sakal newspaper.

4. Kolhapur edition also carried out another separate news item under the caption 'Rich from Silver and Elephant Teeth Smuggling'. Under this news item, it was, inter alia, mentioned that the complainant had collected money from silver and elephant teeth smuggling which came to the knowledge of the newspaper from reliable sources. Description was also given about his modest background leading very ordinary life during his tenure as the student and amassing wealth over a period of time through the aforesaid smuggling activities which made him rich.

It was also stated that he had thrown a huge new year eve party, about three years ago, spending more than 25 laks of rupees.

Likewise, in Belgaum edition, after reproducing the statement given by the Lokayukta, details of various properties owned by the complainant were given.

On 19th March, 2009, the editorial was published in Sakal newspaper with the heading 'Police "Dog" Millionaire'. In this editorial, reference was made to the Oscar winning movie "Slum Dog Millionaire". It was stated that though there was no comparison between the story of 'Jamal', the leading character in the said film and the complainant insofar as acquisition of wealth by the complainant is concerned, but insofar as the complainant is concerned, it was mystifying story that one boy in the middle class family becomes IPS Officer and collects property worth Rs. 250 crores within eight to ten years. The particulars of the properties acquired by the complainant with their value were mentioned and the editorial also highlighted increase in crime in white collar high class persons with no limit of corruption.

To the similar effect were the news published in E-editorial of this newspaper. According to the complainant, the news was very offensive and contained libelous satire against him generally, and in particular in the following lines:

"Much discussion was held on the word "Dog" in the name of movie but in police machinery there are many such "dogs" and they are likelihood of "dog" and such is situation. The one who should protect law they have become "eater" becoming violating and this is not new to this country. The roots of corruption and bribe are deep rooted from Delhi to all over in small lanes also. There is no fear of law. From this it is clear that corruption is becoming social mannerism."

5. The complainant, feeling agitated by the aforesaid publications in different editions of Sakal newspaper, filed the complaint before the Chief Judicial Magistrate, Kolhapur under Section 501, 502 and 504 read with Section 34 of the Indian Penal Code on 5th November, 2009. In this complaint apart from the four editors of the four editions of the newspaper at Kolhapur, Belgaum, Pune and Nasik, Mr. Abhijit Pawar (hereinafter referred to as the 'A-1), Managing Dir

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2016 Supreme(SC) 999

Cases Referred (9)