Mr. Anil Thakeraney vs M. Darius Kapadia And The State Of ...
2003 Latest Caselaw 391 Bom

JUDGMENT

J.G. Chitre, J.

1. Both these applications have been mentioned in the Board as fixed for final hearing. Shri Saste is appearing for the State of Maharashtra and has been saddled with the burden of protecting the interest of the prosecution. Therefore, this Court does not wait for Shri Kapadia, the original complainant and hears these applications which are pretty old and which have obstructed the hearing of the criminal prosecutions in the trial Court.

2. Shri H.N. Vakil appearing for Shri Anil Thakeraney (Original accused No. 6 mentioned in the complaint in context with Case No. 1817/S/1998) submitted that the petitioner published the true account of a criminal proceeding in his magazine "THE BRIEF" and, therefore, keeping in view the exception provided to Section 499 of IPC, he has not committed the offence of defamation. He submitted that the trial Court should not have taken the cognizance of the complaint filed by respondent Kapadia and should not have issued the process against him in context with Section 500 of IPC. Shri Gangal submitted that his client Shri Kamath has absolutely played no role as per the allegations made in the complaint. Therefore, no cognizance should be taken against him by the Magistrate and the process should not have been issued against him. Shri Gangal further submitted that this Court has wide powers and, therefore, when it is a case of no case at all, this Court be pleased to quash the order of issuing process against him client Shri Kamath.

3. 4th exception under Section 499 of IPC provided that it is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. If at all anybody has to be within four corners of the exception, he has no act reasonably and in good faith. His action must be with due caution and care. In view of that, the imputation published in "THE BRIEF" has to be viewed. The petitioner has published that imputation as alleged by the complainant. The matter starts with heading in very big letters "The Director behind bars!" It is sure to invite anybody's attention by its nature itself. In that case the person looking to it would be gathering the impression that the aged director has gone behind the bars. Prima facie it would create a stigma to him. The petitioner has not published the remaining portion of the item in the same size of the letters. The remaining portion of the matter is in small letters. Even that also starts with some sentences which are prima facie damaging the reputation of the aged director who has been reported to be behind bars. The said heading has been decorated with exclamation mark. That has given more strength to the impact which is likely to be created by it. The reporting of the talk ensued between the Brief spokesperson and Shri Kapadia (original complainant) has been mentioned in the said news item at last but one paragraph. Before reading that paragraph one has to read paragraph 1 and paragraph 2.

4. While considering a complaint of defamation, the Court has to consider the imputation as a whole and the prima facie impact which is likely to be created by it also. In the present case, the impact would create a prima facie case in favour of respondent Kapadia. Therefore, this Court does not find that the trial Court has committed any error in issuing the process against the petitioner Mr. Anil Thakeraney, because the defence which the present petitioner may take, will have to undergo the process of judicial consideration. He would be obliged to make out a case that he published the said matter with due care and caution.

5. It is to be noted that whoever publishes the account of a judicial proceedings, is under an obligation to publish it correctly and in a sober way. There has to be no addition to create "mirch masala" to it at the cost of the person against whom such matter has been published. But tendency of printing court proceedings by giving pungent heading is at increasing trend. The prestige lost once cannot be restored later on and, therefore, the Legislature has put alarms of caution by providing explanations, exceptions and illustrations to Section 499 of IPC. Everybody has an important right to live in the society with dignity and remark slinging has been decided to be curbed out by Legislature and, therefore, Section 499 has come with its faces as it is. Whoever endeavours in publishing anything against anybody has to be careful enough to see that he commits no offence and he remains well within four corners of the exceptions satisfactorily.

Criminal application No. 2510 of 1999 stands dismissed.

6. After dismissal of Criminal Application No. 2510 of 1999, this Court turns to Criminal Application No. 35 of 2000. After perusal of the complaint, as it is, no case has been made out against the said petitioner Shri Kamath. The complainant is obliged to make out a case making out prima facie offence alleged to have been committed by such an accused. When a complaint is filed in the Court, the Magistrate is obliged to give judicial consideration to it before coming to the conclusion whether he should take cognizance of it and whether he should issue the process. In this case, he has failed to do so and, therefore, has landed in gross error of issuing the process against the petitioner Shri Kamath. What is illegal cannot be permitted to survive for a single moment. Therefore, process issued against the said petitioner stands quashed. He stands exonerated. He need not appear in the said Court. Mr. Anil Thakeraney to appear before the trial Court on 17.4.2003 during working hours of that Court. Observations made in this judgment should not weigh at the time of trial. The stay stands vacated. Rule stands discharged.

7. Parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.