Abp Private Limited And Another vs State Of West Bengal And Others
2023 Latest Caselaw 5445 Cal

August 23, 2023
AD 13
Court No.14
SG
                                  WPA 20509 of 2023

                              ABP Private Limited and another
                                           vs.
                             State of West Bengal and others
                                                                          .

Mr. Sandipan Ganguly Mr. Soumitra Datta ... for the petitioners

Mr. Anirban Ray, ld. GP Mr. S.G. Mukherjee, ld. PP Mr. Amal Kumar Sen, ld. AGP Mr. Rudradipta Nandy Mr. Lal Mohan Basu ... for the State

Mr. Ayan Bhattacherjee, Mr. Soumen Mahanty Mr. Agnish Basu ... for the de facto complainant

Learned counsel representing the de facto

complainant claims to represent the victim and de facto

complainant in the present case for some preliminary

points that without hearing the victim the instant writ

petition cannot be heard.

He relies on the decision of the Special Bench of the

Hon'ble Apex Court in Jagjeet Singh and others vs Ashish

Mishra, reported in (2022) 9 SCC 321.

Learned senior counsel representing the petitioners

submits that this does not apply to the writ proceedings

with challenges of issuance of notice under Section 160 of

the Code.

A relevant portion of the said judgment is quoted as

under:

"23. A "victim" within the meaning of CrPC cannot

be asked to await the commencement of trial for

asserting his/her right to participate in the

proceedings. He/she has a legally vested right to be

heard at every step post the occurrence of an

offence. Such a "victim" has unbridled participatory

rights from the stage of investigation till the

culmination of the proceedings in an appeal or

revision. We may hasten to clarify that "victim" and

"complainant/informant" are two distinct

connotations in criminal jurisprudence. It is not

always necessary that the complainant/informant is

also a "victim", for even a stranger to the act of crime

can be an "informant", and similarly, a "victim" need

not be the complainant or informant of a felony."

Carefully reading with the same, it appears that even

in writ proceedings the victim has a right to be heard at

the stage of investigation.

Let the victim be added as a party in this writ

petition.

The amendment be carried out by the learned

advocate on record.

Copy of the writ petition is handed over to learned

counsel representing the victim in Court.

The State is represented.

Let this matter fix for hearing today (23.08.2023) at

2.30 pm.

Later

Learned senior counsel representing the petitioners

submits as follows. For quite some time the petitioner

no.1, a company running a news network has been

harassed and intimidated by the State Administration for

speaking the truth. A number of their journalists have

been falsely implicated mostly in cases under Sections

153A,500,504,505(2) of the Penal Code and the like. In

the instant case it appears from a plain reading of the

First Information Report that the main allegation is

against another news network. In the passing, a

reference is made to several other networks. An article

was indeed published in the petitioner no.1's newspaper,

the Ananda Bazar Patrika, which was authored by the

petitioner no.2. However, the errant individual is only

referred to as an influential person. No name either of

the de facto complainant or anyone else was specifically

taken. In any event, an FIR does not lie on a charge

under Section 500 of the Indian Penal Code. Even

Sections 153A, 500 and 505(2) of the Penal Code would

not apply as it cannot be claimed that if a particular

individual is defamed, then there could be enmity

between two groups or classes of persons. Even Section

504 of the Indian Penal Code is not made out in

the facts and circumstances of the present case. The

notice under Section 160 of the Code is also defective.

Clause 2 refers to an accomplice, thereby practically

coming to a conclusion before any investigation that the

petitioner no.2 is an accused.

Learned counsel for the Public Prosecutor

representing the State submits as follows. A prima facie

case is clearly made out in the F. I. R. The petitioner no.2

has been asked to appear as he has been acquainted with

the facts. The basis of the notice is a statement of a

journalist belonging to another news network who

claimed that he had based his reports on the reporting of

the petitioner no.2. As of now, the petitioner no.2 is not

an accused in this case and, therefore, he cannot seek

quashing of investigation. Besides, there are defects in

the writ petition. The prayers in the writ petition for

issuance of writ of prohibition is not maintainable. The

report authored by the petitioner no.2, among other

things, are defamatory and makes an allegation without

any basis.

Learned counsel for the added respondent

submits that the petitioner, as a witness, could not have

prayed for quashing. There is a misjoinder of party

inasmuch as the petitioner no.1 is not a noticee on the

facts of the case.

At this stage, learned senior counsel representing

the petitioner submits that notice was in fact given to

petitioner no.1 asking him to send the petitioner no.2 for

examination.

I have heard the submissions of the learned

counsels for the parties.

Undoubtedly the reporting done by the petitioner

no.1 without citing any specific source is in bad taste and

lacks professionalism. If the said journalist was not even

going to take the name of the errant individual, why

publish the article at all?

However, it is now quite clear that no FIR can lie

on a charge of Section 500 of the Penal Code. If at all, a

petition of complaint has to be filed in accordance with

law. On this, reliance can be placed on Arnab Ranjan

Goswami Vs. Union of India & Ors., (2020) 14 SCC 12

and Subramanian Swamy Vs. Union of India, (2016) 7

SCC 221.

It would be rather presumptuous to suppose

that the defamation of an individual may amount to an

act which is likely to attract enmity between two groups

or classes. The definitions of a 'group' and a 'çlass' would

also perhaps not fit into the present scheme of things.

Therefore, it is to be seen whether at all sections 153A

and 505(2) of the Penal Code can be said to have been

made out.

A prima facie case is, therefore made out by the

petitioner to have some kind of protection.

It also appears that the matter needs to be heard

at length.

The opposite party shall be at liberty to file

affidavit-in-opposition within a fortnight from date. Reply

thereto within a week thereafter.

List this matter for hearing under the heading "For

Order" on 20th September, 2023.

In view of the above discussions and considering

the exigency, the impugned notice shall remain stayed till

22nd September, 2023.

It is, however, clarified that no stay has been

granted on the investigation of the case at this stage.

The learned advocate-on-record of the petitioner

shall be at liberty to communicate a gist of this order to

the authority concerned.

Parties shall act on a server copy of this order duly

downloaded from the official website of this Court.

(Jay Sengupta, J.)