Soumendra Kumar Biswas vs Sheshadri Goswami & Ors
2023 Latest Caselaw 7253 Cal

                                                                           1


                    IN THE HIGH COURT AT CALCUTTA

                       CIVIL APPELLATE SIDE

                          APPELLATE SIDE




Present:
THE HON'BLE JUSTICE HARISH TANDON
         &
THE HON'BLE JUSTICE PRASENJIT BISWAS


                                  FM AT 72 of 2023

                                    CAN 1 of 2023

                          Soumendra Kumar Biswas
                                     Vs.
                          Sheshadri Goswami & Ors.


Appearance:

For the Appellant             :     Mr. Jishnu Chowdhury, Adv.
                                    Mr. Souradeep Banerjee, Adv.
                                    Mr. S. K. Banerjee, Adv.
                                    Ms. S. Sinha, Adv.



Judgment On                   :      18.10.2023



Harish Tandon, J.:
           Despite the service having effected upon the respondent there is

no appearance on their behalf. The supplementary affidavit filed by the

plaintiff/appellant containing various documents re vealing that the address

at which the service is effected is the address shown by the respondent and,

therefore, the service should be treated to have been effected upon them.

We, thus, proceeded to dispose of the appeal in their absence as they did not

appear despite the service having effected upon them.

The present appeal arises from an order dated 7 th January, 2023

and 16th January, 2023 passed by the learned Civil Judge, Senior Division,

5th Court, Alipore in MS no. 13 of 2023 filed by the appellant claiming

compensation/damages for the defamatory statement made against him by

the defendants along with the permanent injunction restraining the

defendant/respondent from publishing and/or approaching the persons of

the society with the notion that the plaintiff has been disclosed in relation to

the affairs of the then company in which he held the post of a Director. The

entire claim in the plaint is founded upon a purported letter dated 1 st

December, 2022 claimed to have been issued by the Defendant no. 1 to the

learned Public Prosecutor, High Court, Calcutta, Mr. Bijon Nag (Chairman,

IFB Group) and the plaintiff (Director of IFB Group). In the said letter, the

said Respondent no. 1 expressly averred that the several Criminal cases

which are mentioned therein are filed with ill motives motivatedly in order to

stop the hearing of the pending cases in the Trial Court being Case no. 287

GR no. 1881 arising out of Shakespeare Sarani Police Station. It is

categorically asserted that the plaintiff along with the other persons named

therein intended to jeopardise the Respondent no. 1 & Ors. by filing the false

case one after another and, therefore, appropriate steps are to be taken so

that all those matters which are pending, as mentioned therein may be

listed urgently for hearing. The aforesaid statements and the demeanour of

the respondents herein have a larger impact on the reputation acquired by

the plaintiff/appellant during his service career and also in a public and

private life as approaches are made to the relatives, friends and the right

thinking persons who always have a due regard for the plaintiff/appellant.

The facts, as unfurled, from the plaint are that on the basis of the

written complaint lodged by the Respondent no. 1 on behalf of the IFB

Investors Forum before the Shakespeare Sarani Police Station being Case

no. 287 of 2015. An investigation was conducted by the police and

ultimately no prima facie materials were unearthed which would amount to

proving all the charges levied against the plaintiff/appellant. The final report

was submitted before the Chief Metropolitan Magistrate at Calcutta and by

an order dated 01.06.2017 the said Judicial Officer accepted the closer

petition while dropping the proceedings. The said order was challenged

before the High Court by the Respondent no. 1 on behalf of the IFB

Investors Forum in re vision which was registered as CRR no. 646 of 2018

which was disposed of granting liberty to file an application under Section

173(8) of the Code of Criminal Procedure. Pursuant to the said liberty

having granted a protest petition was filed by the Respondent no. 1 on

behalf of the said forum for further investigation into the matter. The said

protest petition was further replaced by another protest petition by the

Respondent no. 1 claiming himself to the Secretary of the other forum

without serving a copy thereafter upon the plaintiff/appellant.

Suppressing the entire fact, another complaint case was registered

with the Chief Metropolitan Magistrate at Calcutta against the appellant and

Ors. making the self same allegations which gave rise to registration of the

Shakespeare Sarani Police Station Case no. 287 of 2015, which was

dismissed by the said Chief Metropolitan Magistrate on concealment of

material facts. The plaint further proceeds to disclose that se veral affidatives

are filed in the criminal revision which are pending before this Court

wherein the Respondent no. 1 claimed authority to represent the forum and

ultimately in a Writ Petition no. WPA 19795 of 2022 the High Court

observed that there is no existence of any registered society or firm or

organization under the name and style of IFB Investors Forum yet the

respondents are continuing and claiming such authority on behalf of the

aforesaid forum. It is further disclosed in the plaint that a suit was

instituted by the IFB Industries Ltd. against some of the respondents being

Title Suit no. 1651 of 2022 in the Court of Civil Judge, Senior Division, 5 th

Court, Alipore and an order of injunction restraining the respondents from

using the name of IFB Forum was passed on 06.12.2022. It is stated that by

a letter dated 01.12.2022 being a motion letter was circulated by e-mail

containing the scurrilous and defamatory statement that the plaintiff has

percolated a ill motive in order to stop the hearing of the pending cases. It is

further stated that the respondents have caused such letter in circulation

both physical and through internet portals to many friends and

acquaintance of the plaintiff/appellant raising a question on the honesty

and integrity which the plaintiff/appellant possessed and, therefore, they

should be restrained from circulating the said letter being per se

defamatory.

On the backdrop of the aforesaid facts, an application for

temporary injunction was filed seeking a restraint order against the

respondent and by the impugned order the Court refused to pass an ad

interim order of injunction solely on the ground that the moment

plaintiff/appellant can be adequately compensated in terms of the money,

the injunction should not be passed. Interestingly, the Trial Court e ven after

having observed that although the plaintiff has been suffering more or less

because of such action of the respondent yet he can be compensated in

terms of money.

At the very outset this Court must record that in a suit based on

defamation though the compensation are claimed in the monetary form yet

there is no impediment on the part of the Court to grant an injunction as

the continuing wrong has a larger impact on the reputation of a person

which he possessed in the society and in the eyes of his acquaintances. The

Apex Court in Subramanian Swamy vs. UOI, reported in (2016) 7 SCC

221 held that though Article 19 (1) (a) of the Constitution of India gives a

fundamental right of speech and expression yet it is circumscribed with

certain reasonable restrictions as the freedom of speech cannot be regarded

as so righteous that it would make the reputation of another individual

absolutely ephemeral. It is further held that the Court when called upon to

decide the case of such nature, a balance between the fundamental rights

and the reasonable restrictions imposed by the statutory provisions is

required to be made in this regard. It is no doubt true that the right to

freedom of speech and expression is always regarded not only a

Constitutional right but a right inhered in every human yet, such right is

not absolute or inchoate as it is circumscribed with reasonable restrictions.

It is thus held that the balancing of a fundamental right with the reasonable

restriction is an inviolable constitutional necessity in the following:

"144. The aforementioned authorities c learl y state that bal anc ing of fundamental rights is a c onstitutional nec essity. It is the duty of the Court to strike a bal anc e so that the val ues are sustained. The submission is that c ontinuanc e of c riminal defamation under Sec tion 49 IPC is c onstitutionall y inc onceivabl e as it c reates a serious dent in the right to freedom of speec h and expression. It is urged that to have defamation as a c omponent of c riminal law is an anathema to the idea of free speec h whic h is rec ognised under the Constitution and, therefore, c riminalisation of defamation in any form is an unreasonabl e restric tion. We have al ready hel d that reputation is an inextric able aspec t of right to l ife under Articl e 21 of the Constitution and the State in order to sustain and protec t the said reputation of an individual has kept the provision under Sec tion 499 IPC al ive as a part of law. The seminal point is permissibil ity of c riminal defamation as a reasonabl e restric tion as understood under Articl e 19 (2) of the Constitution. To el ucidate, the submission is that c riminal defamation, a pre-c onstitutional l aw is totally al ien to the c onc ept of free speec h. As stated earlier, the right to reputation is a c onstituent of Articl e 21 of the Constitution. It is an individual 's fundamental right and, therefore, bal anc ing of fundamental right is imperative. The Court has spoken about synthesi s and overl apping of fundamental rights, and thus, sometimes c onfl ic ts between two rights and c ompeting val ues. In the name of freedom of speec h and expression, the right of another c annot be jeopardised. In this regard, reproduc tion of a passage from Noise Poll ution (5), in re woul d be apposite. It reads as foll ows: (SCC p. 746, para 11)

"11. ... Undoubtedl y, the freedom of speec h and right to expression are fundamental rights but the rights are not absol ute. Nobody c an claim a fundamental right to c reate noise by ampl ifying the sound of his speec h with the hel p of l oudspeakers. Whil e one has right to speec h, others have a right to listen or decl ine to listen. Nobody c an be c ompelled to listen and nobody c an claim that hews a right to make his voic e trespass into the ears of mind of others. Nobody c an indul ge in aural aggression. If anyone inc reases his vol ume of speec h and that too with assistanc e of artificial devices so as to c ompul soril y expose unwilling persons to hear a noise raised to unpl easant or obnoxious l evel s, then the person speaking is viol ating the right of others to a peaceful , c omfortabl e and pollution free life guaranteed by Articl e 21. Article 19 (1) (a) c annot be pressed into servic e for defeating the fundamental right guaranteed by Articl e 21. We need not further dwell on this aspec t. Two decisions in this regard del ivered by the High Courts have been brought to our notic e wherein the right to l ive in an atmosphere free from noise poll ution has

been uphel d as the one guaranteed by Article 21 of the Constitution. These decisions are Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. (NCT of Del hi) and P.A. Jac ob v Supt. Of Pol ic e. We have c arefully gone through the reasoning adopted in the two dec isions and the princ iple of l aw l aid down therein, in partic ul ar, the exposition of Article 21 of the Constitution. We find oursel ves in agreement therewith."

We are in respec tful agreement with the aforesaid enunc iati on of l aw. Reputation being an inherent c omponent of Article 21, we do not think it shoul d be allowed to be sull ied sol el y bec ause another individual can have its freedom. It is not a restric tion that has an inevitabl e c onsequenc e whic h impairs c irc ulation of thought and ideas. In fac t, it is c ontrol regard being had to another person's right to go to c ourt and state that he has been wronged and abused. He c an take rec ourse to a proc edure rec ognised and accepted in l aw to retrieve and redeem his reputation. Therefore, the bal anc e between the two rights needs to be struc k. "Reputation" of one c annot be allowed to be c ruc ified at the al tar of the other's right of free speec h. The legisl ature in its wisdom has not thought it appropriate to abol ish c riminality of defamation in the obtaining soc ial climate."

In an earlier decision rendered in case of John Thomas v. Dr. K.

Jagadeesan reported in (2001) 6 SCC 30 the Apex Court was considering

a matter where a hospital in the metropolitan city (Chennai) was sought to

be defamed by publishing an article in the newspaper concerning the

trafficking of the human kidneys.

On the conspectus of the aforesaid case it is held:

"10. Shri Sivasubramaniam, learned Senior Counsel for the appellant contended that the imputations contained in the publication complained of are not per se defamatory. After reading the imputations we have no doubt that they are prima facie libellous. The only effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right -thinking members of the public. However, even if the imputation is not per se defamatory, that by itself would not go to the advantage of the publisher, for , the complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency. So the appellant cannot contend, at this stage, that he is entitled to discharge on the ground that the imputations in the extracted publication were not p er se defamatory."

Much prior thereto the Division Bench of the Calcutta High Court in

W. Hay & Ors. vs. Aswini Kumar Samanta, reported in AIR 1958 CAL

269 was considering a case relating to tarnishing of the reputation through

a libel action and held that innuendo must be set out in clearer and specific

terms with more precision that the words used in the context is defamatory

on the face of the words used in a particular context. The Division Bench

further highlighted that there may be a case that the words are used in the

context of the modern times and, therefore, making it difficult to hold that it

would harm the reputation but if it is apparent from the bare reading of

such statement that it would harm the reputation amongst the fellow

members or a right thinking people it would constitute an act of defamation

and the Court can pass an order of injunction.

The Single Bench of High Court, Delhi in a recent decision

rendered in case of Vinai Kumar Saxena vs. Aam Aadmi Party & Ors.

reported in 2022 SCC Online Del 3093, held that the right to freedom of

speech and expression is not an unfettered right in juxtaposition with the

defamatory statements impacting the reputation of a person. It is further

held that if the Court is of the view that the statements are per se

defamatory and devoid of any truth, there is no fetter on the part of the

Court to grant injunction in the following:

30. On a prima facie view, the various statements/interviews/press conferences/tweets/retweets/hashtags made by the defendants ar e per se defamatory. The same have been made in a reckless manner , without any factual verification, in order to tarnish the reputation of the plaintiff. It cannot be gainsaid that reputation of a person is earned after years and the same cannot be tarnished by any other individual in a ca sual manner.

The damage caused to the reputation of an individual is immediate and far-reaching on the internet. So long as the impugned content continues to be in circulation and visible on social media, it is likely to cause continuing damage to the reputation and image of the plaintiff. Balance of convenience is in favour of the plaintiff and against the defendants. Grave and irreparable harm and injury would be caused to the reputation of the plaintiff if the aforesaid defamatory content continues to exist on the internet and the social media platforms of Defendants 7 and 8/or if the defendants are per mitted to continue making defamatory statements of this nature against the plaintiff."

The law as enunciated in the above reports leaves no ambiguity in

our mind that the Court is not denuded of power to grant injunction in a

defamation suit containing the monetary relief. It is not an absolute

principle that the moment the harm and injury suffered by a person can be

compensated in monetary form, it creates a brindle in the Court to pass an

injunction. The reputation of a person is one of the primary factor which

weighs in the society and any attempt either by a spoken word or

publication or letters circulated through internet portal on the basis of an

unsubstantiated and false allegation can be restrained. The right to freedom

of speech and expression though fundamental right is not an invoiable right

but circumscribed by a reasonable restriction having a fundamental right of

right to freedom of speech and expression into an individual does not confer

such right in absolute form if it tarnishes the image and reputation of a

person which he owes the society and therefore, a balancing is required in

this regard.

The facts narrated hereinabove obviously goes to show that despite

having unsuccessful, an attempt is made to tarnish the reputation of the

plaintiff/appellant not only by causing a letter but circulating the same

amongst the friends and right thinking persons in the society by the use of

the electronic mode. The expression "ill motive" demeans the person and

affects the reputation without any supporting document in this regard when

admittedly all the proceedings initiated ended in favour of the

plaintiff/appellant. Even a misfeasance proceeding initiated under the

Companies Act at the behest of the official liquidator against the

plaintiff/appellant was dismissed as no evidence in this regard was found.

We, therefore, find that the order of the Trial Court cannot be

sustained.

There shall be an ad interim order of injunction restraining the

defendant/respondent from posting the said letter dated 01.12.2022 either

in a physical form or in electronic form by use of the internet portal for a

period of 10 weeks from date or until further order, whichever is earlier.

The Trial Court is directed to dispose of the application for temporary

injunction after completion of the service and giving a liberty to the

defendants to contest the same by filing affidavits as expeditiously as

possible. In the event the application for temporary injunction cannot be

disposed of within 10 weeks from date.

It is upon to the Trial Court to extend, vary or refuse to extend the ad

interim order of injunction granted by this Court upon hearing the

respondents if the circumstances so warrant without any further reference

to this Court.

With these observations the appeal and applications are disposed of.

No order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

      I agree.                                          (Harish Tandon, J.)




(Prasenjit Biswas, J.)