HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION Nos.11280, 11517 and 11536 OF 2022 COMMON ORDER: 1. Since the petitioners in all these petitions are seeking to quash the proceedings arising out of CC No.236 of 2018 on the file of Chief Metropolitan Magistrate at Hyderabad, they are being heard together and disposed by way of this Common Order. 2. Criminal Petition No.280 of 2022 is filed by the petitioners/A1, A3 to A5, Criminal Petition No.11517 of 2022 is filed by A2 and Criminal Petition No.11536 of 2022 is filed by A6 to A11in the calendar case. 3. The 2nd respondent filed a criminal complaint for the
offence under Sections 120-B, 499, 500 & 502 of IPC against the petitioners. In the said complaint, it is stated that the complainant/2nd respondent herein is a successful businessman and runs charitable organizations. On 16.03.2018, a scrolling was repeatedly shown on NTV( next generation TV) regarding a person selling gutkha illegally, would be shown. Thereafter on the next day on 17.03.2018, a 2 program titled "Operation R.R.Gutka" was telecast on the A2/ NTV news channel, which was being run by A1company. The duration of the said program was more than 10 minutes which was repeatedly telecast. In the said news item it was shown that the complainant in the name of R.R.Gutka was selling poisonous substance which was banned. The news reader referred to and addressed complainant as 'Mafia Don', 'Kanthiri', 'Ketugaadu', 'Kachodi', Paniki malina Bachaagadu', 'Old city Don', 'K.D', 'Durmargudu', 'Adda Gadidha' and stated that he has amassed more than Rs.100 Crores at the cost of public health. The news reader, who is A6 reported that the complainant was running a Mafia Network in the Old City and was very influential. It was further mentioned that the complainant was associated with Dawood Ibrahim, a notorious terrorist. News item also mentioned that the complainant was a distributer of Goa Gutka and started manufacturing duplicate Goa Gutka and when he was confronted by Joshi, the owner and manager of 'Goa Gutka' the complainant had sought the help of Dawood Ibrahim, 3 who in turn threatened the said Joshi and ever since the complainant became 'Hameed Bhai'.
4. Further, the property of the sons of the complaint which was situated in Abids area was also shown on TV and mentioned that illegal activities were going on in the said complex. In the said broadcast, the complainant was branded as an associate of terrorist namely Dawood Ibrahim and mentioned that he was carrying out nefarious activities. Further, the complainant was addressed in the most vulgar and derogatory manner.
5. According to the complainant the said news item spread like wild fire and several persons enquired about the said news item. His reputation in the society had got down only on account of such news item being run on NTV-A2.
6. The complainant sent a legal notice on 19.03.2018 calling upon the petitioners/accused to issue unconditional apology. However, no apology was sought by the accused and neither apologized nor the conditions that were mentioned in the legal notice were addressed.
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7. Learned Magistrate on the basis of the complaint has taken cognizance against the accused. The said order reads as follows:
"Perused the sworn statement and MOs 1 and 2. It is disclosed that the A2NTV has telecast a news item against complainant describing him as 'Mafia Don, Kantri, Ketugadu Addagadida, Durmargudu, KD, Old City don and described him as an Anti Social Eliment. In the news item it was alleged that the complaint was manufacturing a Gutka item and branding it as Goa Gutka and selling the same in the market and that when the owner of Goa Gutka by name Joshi questioned the complainant, ,he is alleged to have threatened the said Joshi by using the name of Dawood Ibrahim. The words and expressions used in the news bulletin are not warranted to convey the news to the public.
The material on record is constituting the prima facie case to attract an offence under Section 500 IPC.
Hence the cognizance of offence U/s.500 IPC is taken by exercising the power under Section 190(A) Cr.P.C against R1 to R11. Issue summons against them on payment of costs. Call on 12.06.2018."
8. Thereafter, aggrieved by taking cognizance against the petitioners, petitioners filed Revision Petition No.175 of 2018 before the Hon'ble Sessions Judge, which was also dismissed. Learned Sessions Judge found that the trial Court has rightly taken cognizance against the accused. The telecast of news branding the complainant as mafia don and using several abusive words amounts to offence of defamation. 5
9. Sri T.Pradyumna Kumar Reddy, learned Senior counsel appearing on behalf of Sri T.S.Anirudh Reddy, learned counsel for the petitioners would submit that the allegations made in the complaint do not make out any offence of defamation. Admittedly, the police had raided the premises of the complainant and during investigation it was found that the complainant was involved in manufacturing banned tobacco products. The cognizance taken by the learned Magistrate is bad in law and accordingly, the proceedings have to be quashed. In support of his contention, he relied on the judgment of Hon'ble Supreme Court in the case of Managing Director, Castrol India Limited v. State of Karnataka and another [(2018) 17 Supreme Court Cases 275], wherein it is held as follows:
" 5. A reading of the complaint petition in question does not disclose that any specific act of the appellant resulted in commission of the offences alleged. In the compounding notice issued by the Inspector of Legal Metrology it has been mentioned that the allegedly offending goods (Castrol Plus) were manufactured plus packed by M/s. Castrol India Limited. The offence, therefore, has been committed by the Company and the appellant has been sought to be made vicariously liable merely because at the relevant point of time he was holding the office of Managing Director of Castrol India Limited."6
10. He also relied upon the judgment of Hon'ble Supreme Court in the case of K.M.Mathew v. State of Kerala and another [(1992) 1 Supreme Court Cases 217], wherein it is held as follows:
"10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside.°
11. In the case of P.Kiran v. State of Andhra Pradesh [2010 SCC OnLine AP 1267], this court held as follows:
"4. Thus Mens rea on the part of the accused is essential for defamation. In order to constitute Mens rea, the accused must have prior knowledge of commission of the offence. At this stage, it may be noted that A2 who is the Chief Reporter of Gemini Television at Visakhapatnam is not the petitioner herein and he is not seeking quashing of complaint insofar as he is concerned. The petitioner herein is A1 and he seeks quashing of the complaint insofar as he is concerned, under Section 482 Cr.P.C.
5. In Para 2 of the complaint it is stated that A1 is Managing Director of the Gemini Television and Teja News Electronic Media, Telecasting news throughout the State and also at the National level and that A2 is the Chief Reporter of Gemini Television at Visakhapatnam "responsible for gathering news and making news item from the Visakhapatnam District and causing its telecast through the Main station at Hyderabad." Thus even in the complaint, the complainant did not plead and allege that A1, as Managing Director had any role in gathering news or in making news items or in causing its telecast through the channel. No role is attributed to A1 by the complainant in telecasting the alleged 7 defamatory news item. When A1 had no role in affairs in Gemini Television, no vicarious liability on criminal side can be attributed to him unless there is any special or specific provision in Section 499 IPC mulcting him with such vicarious liability. It was held by this Court in Ravi Prakash v. J.C.Diwakar Reddy, 2010 (1) ALD (Crl.) 575 (AP), afer surveying case law in the subject including K.M.Mathew v. State of Kerala, AIR 1992 SC 2206, Dasari Narayana Rao v. R.D.Bhagvanas, 1986 Crl.LJ 888, by this Court, Prabhu Chawlaand v. A.U.Sheriff, 1995 Crl.LJ 1922, of the Karnataka High Court and S.Nihal Sigh v. Arjan Das, 1983 Crl. LJ 777, of the Delhi High Court."
12. In the case of Smt. Dipannita Jaiswal v. State of Assam and another, the Gauati High Court in Criminal Petition No.33 of 2015 held as follows:
"13. Chairman/Managing Director of a news channel can be held liable for publication of the offending news item only if it can be shown that he was somehow concerned with publication of the defamatory news item and that he had active knowledge thereof. As held in S Nihal Page No.# 5/7 Singh & Ors. V. Arjan Das; 1983 Cri. L.J. 777, an individual cannot be asked to answer the charge of defamation merely because he happened to be the Chairman of a company which owns a newspaper, without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company.
14. So, the whole concept of fastening liability hinges on knowledge. As held in Kalanithi Maran v. A.Rathinaraj; 2017 SCC Online Mad 9723 and G K Mani v. New General Media Corporation (P.) Ltd; 2019 SCC Online Mad 8332, for fastening liability, what is of paramount importance is that knowledge has to be attributed to the accused person. In Kalanithi (supra), the petitioner is the Chairman-cum- MD of Sun TV Network Ltd. and the complaint was filed against him for telecasting an interview between the complainant and one person, on the allegation of falsity of the statement given in the news and consequently, the MD is equally responsible for telecasting such defamatory statement. The Hon'ble High Court held as below:-
"Vicarious liability under Press and Registration of Books Act, 1867, is not applicable to electronic media. Therefore, only general rule is applicable in the present case. To attract the offence of defamation, the imputation must have been made with the knowledge or 8 intention or at least with reason to believe that it will harm the person concerned."
13. On the other hand, learned counsel for the respondent/complainant submits that news item would not be telecast on its own unless there is consent of the management. The persons who are responsible for running the programme on the TV would be the Managing Directors and other Directors. The reporters are responsible for gathering news item and also news reader for making such comments. Further, the matter was scrolled on TV and in fact all the accused had knowledge about the said program, for which reason, the proceedings cannot be quashed.
14. Having perused the complaint, the grievance of the complainant is that he was shown as a criminal and also several words uttered, which are prima facie defamatory in nature. According to the complainant, news item was run on A2 channel and A6 was reporter/presenter of the program who made such abuses.
15. At para 17 of the complainant, it is mentioned that all the accused have telecast the program repeatedly without proof, making wild allegations resulting in scandalizing and 9 maligning the complaint's character in order to increase their viewer ratings. In the said circumstances, according to the complaint, all the accused have entered into criminal conspiracy for telecasting defamatory and derogatory news item in order to increase viewer ratings, as such all the accused are liable to be prosecuted under Section 120-B of IPC.
16. The complaint is made on an assumption that the management of A2, A3 to A5 who were managing the affairs of A1/M/s.Rachana Television Private Limited and also NTV/A2, were responsible for the defamatory content. Stating that on the basis of the program, the complainant's inference was that the management and the organization was also responsible and they have to be tried with the aid of Section 120-B of IPC for entering into criminal conspiracy to defame the complainant cannot be accepted. In the entire complaint, it is no where mentioned as to the role played by A1, A3 to A5. Only on the basis of general assumption that these persons are responsible, they are arrayed as accused. Admittedly hundreds of employees work to run the 24/7 10 news channel. Technical persons, reporters, producers, presenters and several other categories of employees are involved. The Hon'ble Supreme Court in the case of Managing Director, Castrol India Limited v. State of Karnataka (supra), while dealing with a case under Sections 39 and 74 of Standards of Weights and Measures Act, 1976 held that the Managing Director, though responsible for the conduct of the company business, cannot be mulcted with criminal liability unless specifically shown. Similar view was taken by the Hon'ble Supreme Court in the case of K.M.Mathew's case. The proceedings against the Chief Editor were quashed on the ground that there was no allegation made in the complaint. Unless there is prima facie case, persons cannot be asked to undergo the rigmarole of a criminal trial.
17. The Hon'ble Supreme Court in Pepsi Foods Limited Vs. Special Judicial Magistrate (2006) 7 SCC 296 at para-28 held that summoning of accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter course. In Maksood Saiyed Vs. State of Gujarat (1980) 11 2 SCR 380=1980 (2) SCC 665 the Hon'ble Supreme Court held that merely holding an office in a company cannot be made basis to criminally prosecute holding them vicariously liable unless they are shown to be individually liable on the basis of material available.
18. The program was telecast on A2 channel/NTV. The said program was anchored by A6/news reporter/presenter. The other accused i.e., A7 is news editor, A8 to A11 are shown as news reporters. The reporters would be responsible for collecting news and news was presented by A6 and for the said reason of the content of the program being prima facie defamatory, the proceedings against A2, A6 to A11 cannot be quashed.
19. In the result, the proceedings against the petitioners/A1, A3 to A5 in C.C No.236 of 2018 on the file of Chief Metropolitan Magistrate at Hyderabad, are hereby quashed. Learned Senior Counsel alternatively argued that in the event of this Court not finding favour with the grounds, the attendance of the accused may be dispensed with. 12 Accordingly, the attendance of A6 to A11 is dispensed subject to the condition that the counsel proceeds with the trial in their absence and subject to filing an affidavit by the petitioners stating that in their absence the proceedings conducted by their counsel will not be disputed by them in any manner and also they shall not dispute their identity. However, the petitioners shall appear before the learned Magistrate as and when their presence is required. In the event of the petitioners' failure to appear when the Court directs, this order dispensing their attendance would stand cancelled. The 2nd Accused can be represented by any representative of the company in accordance with Section 305 of Cr.P.C.
20. Accordingly, Criminal Petition No.11280 of 2022 is allowed and Criminal Petition Nos.11517 and 11536 are dismissed. Consequently, miscellaneous petitions, if any, shall stand disposed.
_________________ K.SURENDER, J Date: 07.02.2023 kvs 13 THE HON'BLE SRI JUSTICE K.SURENDER Crl.P.Nos.11280, 11517 and 11536 of 2022 Dated:07.02.2023 kvs