Dinkar Keshavrao Raikar And Anr vs Mirza Afzal Baig Mirza Anwar Baig
2017 Latest Caselaw 8576 Bom

                                     (1)                     901-Cri.Appln.607 of 2006



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO.607 OF 2006

1)    Dinkar Keshvrao Raikar
      Age: 49 years, Occu.: Editor, Daily Lokmat,
      Jalna Road, Aurangabad.

2)    Satish Vasantrao Joshi
      Age: 41 years, Occu.: Dist. Representative,
      Daily Lokmat, Gandhi Park,
      Parbhani.                            ..Applicants

                       Verus

.     Mirza Afzal Baig s/o. Mirza Anvar Baig
      Age: 41 years, Occu.: Advocate,
      R/o. Gulshan Bagh, Phule Colony,
      Parbhani.                           ..Respondent
                            ...   

Advocate for Applicants: Mr.Satyajit Bora
Advocate for Respondent: Mr.S.T.Veer

                                    ...

                                    CORAM :  PRAKASH D.NAIK, J.

DATED : 09.11.2017

ORAL JUDGMENT:-

1) The applicants were impleaded as accused in

complaint filed by the respondent for offences punishable

under Sections 500 and 501 of the Indian Penal Code. The

applicants have invoked the inherent powers of this Court

(2) 901-Cri.Appln.607 of 2006

under Section 482 of the Code of Criminal Procedure to

challenge the said proceedings.

2) The complainant is a practicing Advocate. The

newspaper viz. 'Dainik Lokmat' has large circulation in

Parbhani District. The accused No.1 is Editor-in-chief

and accused No.2 is Editor of the said Newspaper. The

accused No.3 is the Printer and accused No.4 is District

Reporter. In the issue of the said newspaper of 2.7.2005,

the accused had published news in relation to the assault

on the Advocates and closure of functioning of the Court

at the instance of the Advocates. The news item refers

to incident, wherein purportedly on 30.6.2005, two

Advocates were allegedly assaulted by some persons. It

was also mentioned that two Advocates were detained in

Nanalpeth Police Station lockup uptil 6.00 A.M The

contention of Advocates Association is that, the

Advocates were assaulted by Police. The said news item

include the name of the complainant as one of the

Advocate. It was also stated that, the Advocates were

(3) 901-Cri.Appln.607 of 2006

medically examined and one of them was found to have

consumed Alcohol and the case was registered under

Section 85(1) of the Bombay Prohibition Act. This

information was provided by the Nanalpeth Police to the

said Newspaper. It is the case of the complainant that

he is not connected with the incident reported in the

said news item and the news item has caused harm to his

reputation, which amounts to defamation. The complainant

has stated that, in fact, Advocate Gulam Dastgir and

Advocate Sajid were involved in the incident and the

accused had knowledge about incident. In spite of that,

the news of applicant was published in the News report.

The complainant, therefore, filed a complaint.

3) The learned Magistrate after recording verification

statement and statements of witnesses issued the process

against the applicants and two other accused for the

offence punishable under Sections 500 and 501 of the

Indian Penal Code. The accused preferred Criminal

Revision Application before the Court of Sessions. The

(4) 901-Cri.Appln.607 of 2006

application of the two other accused was allowed by the

Court of Sessions vide order dated 9.12.2005. However,

the application of the present applicants was rejected.

Hence,, the applicants have approached this Court by

preferring the present application.

4) The learned counsel for the applicants submitted

that the offence as alleged punishable under Sections 500

and 501 of the Indian Penal Code, is not made out against

the applicants. The learned Magistrate has committed an

error in issuing the process against the applicants. The

Sessions Court has also erred in rejecting the Criminal

Revision Application of the applicants. It is submitted

that the requisite ingredients to constitute an offence

under Section 499 of the Indian Penal Code are completely

absent in the impugned complaint and therefore, the Court

ought not to have issued process for the said offence.

The learned Magistrate has mechanically issued the

process without looking into the requirements of Section

499 and 501 of the Indian Penal Code. It is submitted

(5) 901-Cri.Appln.607 of 2006

that to constitute the offence as alleged, there has to

be an intention to cause harm to the reputation of the

complainant, which is completely absent in the present

case. It is submitted that the Courts below failed to

appreciate the context in which the news item was

published in newspaper. The applicants, who are

concerned with the said daily newspaper have no animosity

against the complainant and in due course, the news item

was published with a view to depict the incident, which

had occurred as stated in the news item. It is submitted

that the news item does not cause any harm to the

reputation of the complainant, and on the contrary, the

complainant and other persons were reported to be the

victim of the circumstances. The news items refer to the

incident of assault on the two Advocates and the

detention of the said persons by the Police. It is

submitted that the news item does not indicate in any

manner that the complainant had committed any act, which

causes harm to their reputation. It is further submitted

that the clarificatory statement was also published

(6) 901-Cri.Appln.607 of 2006

subsequently by the said newspaper wherein apology was

tendered stating that the name of the complainant has

been wrongly reflected in the said news report. It is

therefore, submitted that the news item taking as it is,

in no manner constitute offence punishable under

Sections 500 and 501 of the Indian Penal Code.

5) The learned counsel for the applicants relied upon

several decisions of the Apex Court as well as this Court

in support of his submission that process issued against

the applicants is required to be quashed and set aside.

The learned counsel for the applicants relied upon the

following decisions:-

(a) Maksud Saiyed Vs. State of Gujarat and Ors., reported in 2008(5) SCC, 668.

(b) Sanatan Sanstha Vs. State of Goa and Anr., reported in 2007, Cri.L.J., 2216.

(c) Valmiki Faleiro Vs. Mrs.Lauriana Fernandes and Ors., reported in 2005, Cri.L.J., 2498.

(7) 901-Cri.Appln.607 of 2006

(d) Leelamma Thomas Vs. State of Kerala (MANU/KE/ 2064/2014).

(e) Vishveshwar Bhat Vs. K.N.Ashok (MANU/KA/1522/ 2011).

(f) Bennett Coleman & Co.Ltd. and Ors. Vs. K.Sarat Chandra and Ors. (MANU/AP/1026/2015).

(g) Mr.Umar Abid Khan & Ors. Vs. Vincy Gonsalves Alias Vincent Gonsalves and others, reported in 2010(1) ALL MR, 74.

6) The learned counsel for the respondent-complainant

submitted that there is no substance in the submissions

advanced by the learned counsel for the applicants. The

learned Magistrate has issued the process after going

through the contents of the complaint, the documents

annexed to the complaint, the verification statement and

the evidence before the Court. The order of issuance of

process is prima-facie opinion of the Court, which is

based on the material on record. The grounds raised by

the applicants cannot be adjudicated at this stage and at

(8) 901-Cri.Appln.607 of 2006

the most, they can raise their defence at the time of

trial. The news report clearly mentions that the

Advocates were assaulted and the Courts were closed.

Thereafter, the report also refers to the detention of

the Advocates in the custody. It is submitted that on

reading of the said newspaper, an impression is created

in the mind of the readers that the Advocates, who were

referred to therein including the complainant, were

involved in the said incident and thereby the said report

has caused harm to the reputation of the complainant.

The learned Magistrate has therefore, rightly issued the

process against the applicants. Prima-facie, there is

sufficient material on record to issue the process and

therefore, it is not necessary to interfere in the order

of the process. It is further submitted that the

complainant is not at all concerned with the incident,

which is referred in the news item, however, the

impression is created that the complainant was involved

in the incident, which is reflected therein. It is

further submitted that the Sessions Court has considered

(9) 901-Cri.Appln.607 of 2006

the issues raised by the applicants in the Criminal

Revision Application and the same was rejected for the

reasons stated in the said order. The applicants have

not made out any case to quash and set aside the order of

process and the order of the learned Sessions Court

rejecting the application and the impugned proceedings,

which are initiated against the applicants. It is

submitted that there is voluminous evidence to support

the complaint and he must be given an opportunity to

adduce the evidence in trial and therefore, this is not a

stage to deal with the defence raised by the applicants

in the present application. It is also submitted that

merely because apology was tendered in a subsequent news

item, the accused cannot be absolved of the charges

levelled against them. The same was tendered belatedly.

The harm was caused to the reputation of the complainant

in the first news item. Only upon clarificatory

statement and apology, which is reflected subsequently,

the offence committed by therefore cannot be wiped out.

The complainant has also filed affidavit-in-reply

( 10 ) 901-Cri.Appln.607 of 2006

opposing the relief sought by applicants. The learned

counsel for the respondent-complainant placed reliance

upon the following cases:-

(a) Balraj Khanna and others Vs. Moti Ram, reported in 1971, SC, 1389.

(b) Vijay Singh Mankotia Vs. Nehar Singh and anr., reported in 2000, Cri.L.J., 1159.

(c) National Insurance Company Ltd. and others Vs. Narendra Kumar Jhanjhri, reported in 1990, Cri.L.J., 773.

7) I have gone through the documents on record. On

perusal of news item dated 2.7.2005, it is apparent that

the news item refers to the incident of 30.6.2005. It is

stated that two Advocates were assaulted by 10-15 persons

and the complaint was lodged with the Police Station. It

is further stated that Advocates Association had

protested against the incident of assault. It is also

stated that the Advocates Association had also approached

the Superintendent of Police and protested the incident

( 11 ) 901-Cri.Appln.607 of 2006

of assault and demanded that action be initiated against

the persons, who had assaulted the said Advocates. They

were assured that, enquiry in respect to said incident

would be conducted and action will be initiated against

the accused. It was further stated that in the mean time

the Advocates, who were assaulted were taken to the

Nanalpeth Police Station and they were made to wait at

the Police Station till 6:00 A.M. It was also reported

that, it was contention of Advocates' Association that,

two policemen on duty had assaulted the advocates. It

was further reported that, the Police gave information to

the Newspaper that, there was medical examination of the

Advocate Gulam Khan and Advocate Baig and it was reported

that one of the Advocate Mr.Gulam Khan had consumed

liquor and the action against him was initiated by the

concerned Police Station. In the news item, the name of

the complainant is reflected as one of the persons, who

was assaulted by the miscreants. The news item with

regard to intoxication of liquor was in respect of

another person and not of the present complainant.

( 12 ) 901-Cri.Appln.607 of 2006

Reading the complaint as it is, it does not appear that

the present complainant has been attributed any role,

which would cause any harm to his reputation. The News

item reports the version of Advocates as well as Police.

The information about Medical Examination and action

taken by Police was reported by Police which is clearly

spelt out in the Notice. Reading the News item it does

not appear that there was any malice or intention to

defame on the part of newspaper. It depicts version of

both sides. It is also pertinent to note that in

pursuant to the said news item, notice was issued by the

complainant to the said newspaper and on 22.7.2005, the

clarificatory report was published by said newspaper

'Dainik Lokmat' in which it was clarified that the

complainant is not connected with the said incident and

therefore his name has been reflected in the earlier news

item inadvertently. It is stated that in the

clarificatory report, the newspaper tendered apology for

the inconvenience and embarrassment caused to the

complainant.

                                     ( 13 )                    901-Cri.Appln.607 of 2006


8)    In   the   light   of   the   said   clarificatory   statement 

published on 22.7.2005, it is apparent that there was no

intention on the part of the newspaper in causing any

harm to the reputation of the complainant, which is pre-

requisite for initiation of proceedings under Section 499

of the Indian Penal Code. It is true that the defence of

the accused is required to be agitated during the trial

and the Court may not consider the same while exercising

powers under Section 482 of the Code of Criminal

Procedure or supervisory powers under Article 227 of

Constitution of India. However, taking the news item as

it is if the required ingredients to constitute offence

under Section 499 or 501 of the Indian Penal Code are

absent, then certainly the Court can exercise inherent

powers since it would be abuse of law to continue such

proceedings against the accused. The complainant has

stated in the complaint that, he was not concerned with

the incident and that some other advocates were involved

in the incident, and he has given the name of the said

Advocates. This shows that he admits the incident and

( 14 ) 901-Cri.Appln.607 of 2006

that his name is wrongly stated in news item. The

Newspaper had stated that the name was mentioned

inadvertently. Taking into consideration the factual

aspects, there is nothing on record to show that the name

of complainant was mentioned deliberately. It is a

reporting of incident and not an imputation published

with intent to defame and there is no reason to believe

that it would cause defamation.

9) It is pertinent to note that the applicants are

concerned with the said newspaper 'Dainik Lokmat'. There

is no animosity against the complainant and the news item

dated 2.7.2005 is apparently reported by referring name

of the complainant. In the clarificatory statement

apology was tendered in news item dated 22.7.2005. What

is required to be seen is that whether there was any

intention to cause harm to the reputation of the persons

against whom the reporting was done. Section 499 of the

Indian Penal Code clearly stipulates that the imputation

has to be done with intention to cause harm, or knowing

( 15 ) 901-Cri.Appln.607 of 2006

or having reason to believe that such imputation will

cause harm to the reputation of such person. The news

item does not in any way indicate that the complainant is

shown in bad light. On the contrary, the news item refers

to the fact that the complainant is a victim, who was

assaulted by some persons, which was protested by Bar

Association. The tenor of the said news item appears to

be to bring to the news that there was an incident of

assault, which was protested by the Bar Association and

representation is being made to the superior Police

Officer to initiate action against the persons, who

assaulted the Advocates. Therefore, it does not appear

that the reporting was done by the applicants with an

intention to cause harm to the reputation of the

complainant.

10) In the decisions relied upon by the applicants in

the case of Maksud Saiyed Vs. State of Gujarat and ors.

(supra), it has been observed in paragraph No.9 of the

said Judgment that an inadvertent mistake committed by

( 16 ) 901-Cri.Appln.607 of 2006

the bank in referring to the case being pending before

DRT instead of City Civil Court cannot give a rise to a

cause of action for filing a complaint for offence

punishable under Sections 500 and 501 of the Indian Penal

Code.

11) In the decision of this Court in case of Sanatan

Sanstha (supra), it has been observed that the essence of

offence of defamation is the harm caused to the

reputation of a person. Character is what a person

actually is and reputation is what neighbours and others

say he is. In other words, reputation is a composite

hearsay and which is the opinion of the community against

a person. Everyone is entitled to have a very high

estimate of himself as the complainant does in the said

case but reputation is the estimation in which a person

is held by others. The commission of offence of

defamation or publishing any imputation concerning any

person must be 'intending to harm or knowing or having

reason to believe that such imputation will harm the

( 17 ) 901-Cri.Appln.607 of 2006

reputation of such person'.

12) In an other decision relied upon by the applicants

in the case of Valmiki Faleiro (supra), this Court had

made similar observations. In paragraph 22 of the said

decision, it was observed that the essence of offence of

defamation is the harm caused to the reputation of the

person.

13) In the case of Leelamma Thomas (supra), the High

Court of Kerala had dealt with the complaint for an

offence under Section 499 of the Indian Penal Code

wherein the requirements to constitute the offence under

Section 499 of the Indian Penal Code are discussed. It

has been observed by the Court that wrong photograph

was published and on account of that a complaint was

filed alleging defamation. The Court observed that it

was a bonafide mistake and there was no willful intention

of causing loss of reputation.

( 18 ) 901-Cri.Appln.607 of 2006

14) Similarly, in another decision, in the case of

Vishveshwar Bhat (supra), the Karnataka High Court had

dealt with the requirements of Section 499 in detail. The

facts of the said case indicate that the newspaper had

mistakenly given wrong name of person by changing

initials. Hence, it was observed that there was no

intention to cause harm to complainant.

15) In the decision relied upon by the Advocate for the

applicants in the case of Bennett Coleman and Co. Ltd.

and ors. (supra), the Andhra Pradesh High Court has

considered the requirements of offence of defamation.

In paragraph No.7, the said Court has discussed the law

relating to the defamation. Several decisions were

referred to while dealing with the complaint, which was

under challenge. The Judgment in detail deals with

essence for the offence of defamation. It also refers to

several decisions dealing with the essentials of

defamation. There must be defamatory statement, the

defamatory statement must be understood by the right

( 19 ) 901-Cri.Appln.607 of 2006

thinking or reasonable minded persons, there must be

publication of the defamatory statement, that is to say,

it must be communicated to some person other than the

plaintiff himself, and in case of slander either there

must be proof of special damages or the slander must come

within the serious classes of cases in which it is

actionable per se. The Court has distinguished between

remedy of civil law and criminal prosecution. In

paragraph No.12, it is observed that, the very wording of

the said penal provision reflects that imputation is

intending to harm or knowing or having reason to believe

that it will harm the reputation of such person. Prima-

facie, the case for defamation is required to be made

out. The Court referred to several decisions of the

Apex Court, viz. Jawaharlal Darda Vs. Manoharrao

Ganpatrao Kapsikar, reported in 1998(4), SCC, 112, as

well as decision of the Supreme Court in case of

Rajendra Kumar Sitaram Pande Vs. Uttam, reported in 1999

(3) SCC, 134. Taking into consideration the ratio laid

down in the aforesaid decisions, it is apparent that to

( 20 ) 901-Cri.Appln.607 of 2006

constitute offence of defamation and to initiate

prosecution for the said offence, the requisite

ingredients under Section 499 of the Indian Penal Code

are required to be spelt out.

16) The learned counsel for the complainant relied upon

the decisions, which are referred to herein above. In

the case of Balraj Khanna and others. Vs. Moti Ram

(supra), the Apex Court has considered the fact that the

exception, if any, which are stipulated under Section 499

can arise only after commencement of trial. It has to be

seen whether prima-facie case is made out on the basis of

the complaint. Relying upon the said decision, it was

contended by the learned counsel for the complainant that

in the present case it would not be open to the Court to

interfere, as the Trial Court has issued process on the

basis of prima-facie opinion, which is required to be

considered at the stage of issuance of process. The

grounds raised by the accused are to be considered at the

time of trial.

( 21 ) 901-Cri.Appln.607 of 2006

17) In other decision in the case of National Insurance

Co. Ltd., (supra) the Patna High Court has considered the

issue relating to quashing of similar proceeding. It has

been observed that the proceeding can be quashed only if

the chances of conviction are bleak and no case is made

out, in all other circumstances, the complainant must be

given an opportunity to try his case by adducing

evidence.

18) In the decision of the Vijay Singh Mankotia Vs.

Nehar Singh and another (supra) relied upon by the

complainant, the Court has observed that the contents of

the complaint and newspaper clippings attached therewith

prima-facie discloses commission of offence under Section

500 of the Indian Penal Code. The complaint, therefore,

cannot be quashed and set aside. It was submitted by

the learned counsel for the complainant that in the

present case in support of the complaint,the witnesses

were examined by the complainant and thereafter, the

process was issued by the Trial Court.

( 22 ) 901-Cri.Appln.607 of 2006

19) I have given anxious consideration to the decisions

relied upon by the counsel for the complainant. It is

pertinent to note that in the present case, by reading

the news item itself, I do not find any ingredients to

constitute offence of defamation. On reading alleged

news item itself and on the basis of facts and

circumstances in the present case, it is clear that no

case for offences of defamation is made out. The

essential ingredients to constitute offence of defamation

and offence under Section 501 of Indian Penal Code are

lacking in the present proceedings and for the reasons

stated herein above, I am of the opinion that the

proceedings against the applicants cannot be continued.

In the circumstances, the proceedings are required to be

quashed and set aside. Hence, I pass the following

order:

ORDER

(I) Criminal application No.607 of 2006 is allowed.

( 23 ) 901-Cri.Appln.607 of 2006

(II) The order of issuance of process dated 23.8.2005 passed by the learned Chief Judicial Magistrate, Parbhani in SCC No.1247 of 2005 and the order passed by the Sessions Court dated 9.12.2005 in Criminal Revision Application No.140 of 2005, alongwith proceedings in SCC No.1247 of 2005 are hereby quashed and set aside.

[PRAKASH D.NAIK, J.] SPT/901-Cri.Appln.607 of 2006