The Hindustan Times And Anr. vs State
2002 Latest Caselaw 796 Del

JUDGMENT

S.K. Agarwal, J.

1. This order will dispose of four petitions under Sections 397/401 and 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), challenging the order dated 10th March, 1998 summoning the petitioner for the offence punishable under Section 2(2) of the Criminal Law Amendment (Amending) Act, 1990 (for short "the Act") and the order dated 6th November, 1999 dismissing application of the prosecution seeking withdrawal of the complaint.

2. Facts in brief are that on 8th January, 1998, Government of NCT of Delhi filed a complaint under Section 2(2) of the Act against The Hindustan Times, its publishers and editor, M/s. Lloyds Finance Ltd., Managing Director of the Lloyds Finance Ltd. and M/s. Moulis Advertising Service (P) Ltd. and its Director (hereinafter referred to as "the petitioners") alleging that in Hindustan Times, English daily newspaper, dated 21st April, 1997 in the advertisement of M/s. Llyod Finance Ltd. issued through M/s. Moulis Advertising Service (P) Ltd., the "Map of India" published was not in conformity with the international boundary and coast line as depicted in the certified Map of India, published by the Survey of India. The Map of India published in the advertisement was full of discrepancies, some portions of India, including Andaman Nicobar and Lakshadeep island were not shown. The report of the Additional Surveyor General of India also revealed that published map was not in conformity with the maps of India published by Survey of India. The petitioners were charged for contravention of Section 2(2) of the Criminal Law Amendment Act, 1961 as amended by Criminal Law Amendment (Amending) Act, 1990. It reads as under:-

1. Questioning the territorial integrity or frontiers to the interests of safety and security of India.-(1) Whoever by words either spoken or written, or by signs, or by visible representation or otherwise, questions the territorial integrity or frontiers of India in a manner which is, or is likely to be, prejudicial to the interests of the safety or security of India, shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

(2) Whoever publishes a map of India, which is not in conformity with the maps of India as published by the Survey of India, shall be punishable with imprisonment which may extend to six months, or with fine, or with both.

(3) No court shall take cognizance of an offence punishable under Sub-section (2), except on a complaint made by the Government."

By the impugned order dated 12.3.1998, petitioners were summoned. Petitioners' application for recalling the order of summoning was dismissed on 25th February, 1999 and charge was framed against them. On the representation made by the accused persons the Lt. Governor of Delhi accorded approval to the withdrawal of the case. Consequently, the public prosecutor moved an application before the learned trial court seeking withdrawal of prosecution under Section 321 Cr.P.C. against the petitioners. Learned trial court vide order dated 6th November, 1999 dismissed the application. This order is under challenge.

3. I have heard learned counsel for the petitioners and learned APP for the State and have been taken through the record.

4. Learned counsel for the petitioners argued that the publication of wrong map of India was on account of inadvertence and due to oversight on their part. The letter in this regard was written by M/s. Moulis Advertising Service (P) Ltd. to the Commissioner of Police; M/s. Moulis Advertising Service (P) Ltd. gave another advertisement which was published in "Hindustan Times" on 5th May, 1997 wherein it was clarified that they had inadvertently omitted Andaman Nicobar and Lakshadweep Islands. The petitioners never tried to question the territorial integrity of India or acted in any manner prejudicial to the interest or the safety or security of India. He argued that guilty intention or means read is not the essential ingredient for the offence under Sub-section (2) of Section 2 of the Act and mere publication of the map of India which is not in conformity with the map published by Survey of India is not a penal offence. The petitioner immediately made rectification of advertisement error by the advertisers and also issued an apology in Hindustan Times dated 9th September, 2001. Learned counsel submits that he would only press their petition against order dismissing the withdrawal application moved by the prosecution and would not challenge the order of summoning.

5. Learned APP for state referring to affidavit of the Joint Secretary (Home), Government of NCT, Delhi argued that the decision to withdraw the prosecution against the accused persons was taken at the highest level, the file was routed through the Director Prosecution and Lt. Governor of Delhi gave his approval to the withdrawal of prosecution. After the petitions were filed in the High Court, the Government considered the matter afresh and decide that the complaint should be withdrawn and that this decision was taken in larger public interest. The application was filed in good faith and in the interest of public policy and justice. Relevant portion of the affidavit reads:

"10. That I once again submit that the decision to withdraw the Prosecution against M/s. Hindustan Times, M/s. Moulis Advertising, M/s. Lloyds Finance and others has been taken at the highest level before considering all the relevant material and the decision was taken in good faith and there was no attempt to stifle and thwart the ends of justice. Hence, I pray that the present Revision Petition may be allowed and this Hon'ble Court may set aside the Order passed by the learned MM of 25.2.1999 and allow the Application filed in the Trial Court for withdrawal of Prosecution against all the Accused persons who have filed four separate Revision Petitions in this Court."

Law in this regard is well settled by several authoritative pronouncements of the apex court. The Supreme Court in Abdul Karim and Ors. v. State of Karnataka and Ors. (2000) 8 SCC 710 after taking into consideration its earlier decisions has held:-

"18. The law as it stands today in relation to applications under Section 321 is laid down by the majority judgment delivered by Khalid, J. in the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar. It is held therein that when an application under Section 321 is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. What the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such consent was given on an overall consideration of the material available, the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest."

(emphasis supplied)

6. Applying the above principles to the facts of this case, as noticed above, the complaint was filed by the State against the accused persons for publishing a wrong map of India. The decision to withdraw the prosecution was taken in larger public interest in good faith; in the interest of public policy and justice. The decision of the public prosecutor was on the basis of the material available on record. The file was routed through the Director Prosecution. In these circumstances, it cannot be said that the withdrawal application was moved to thwart or stifle the process of law. The bona fides of the conduct of the petitioners finds support from the fact that the mistake in the publication of advertisement was rectified by the subsequent advertisements wherein it was clarified that the earlier map showed only the areas of their operation. In addition the apology was also published in Hindustan Times dated 21st September, 2001. It reads:

"Apology

In the advertisement given by M/s. Lloyds Finance Ltd. and released by Moulis Advertising Service Pvt. Ltd. in Hindustan Times on 21.4.1997, the map of India was published. The map so published was not in conformity with the map of India, in so far as the map inadvertently did not feature Andaman & Nicobar Islands and Lakshadweep Islands. THE SAID ERROR IS SINCERELY REGRETTED. We subsequently published the correct map of India in our edition dated 5.5.1997."

7. The deficiencies in the application moved before the trial court have been made up by the additional affidavit filed before this court by the Additional Public Prosecutor for the State. The rejection of the application for withdrawal by the learned trial court, on the ground that in similar cases, no decision has been taken by the Government is not sustainable in law. Each case depends upon its own facts. Section 321 Cr. P.C. only contemplates consent by the court in a supervisory and not an adjudicating manner. Here, the application for withdrawal appears to have been made after independent consideration.

For the foregoing reasons, impugned order dated 25th February, 1999 dismissing application of the prosecutor for withdrawal of prosecutions under Section 321 Cr.P.C. against all the petitioners is allowed. Petitions stand disposed of.