Thiru N. Ravi And Ors. vs S.D. Kathuria And Ors.
2007 Latest Caselaw 1448 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner No. 1 is the editor of a daily newspaper published from Madras called 'The Hindu'. Second petitioner is the publisher of the newspaper. Third petitioner is the newspaper itself.

2. The 3 petitioners pray that the order summoning the petitioners to face trial for an offence under Section 499/500 IPC as also the complaint whereon said order has been passed be quashed.

3. Relevant facts which need to be noted for adjudicating the claim of the petitioners is that on 18.6.1994, a news item was published in 'The Hindu' which reads as follows:

Young Housewife, Lovleen Kathuria was probably harassed more by the staff of the Crime against Women Cell (CAW) of the Delhi Police now than by her in laws while she was staying with them. She has been running from pillar to post to get back her belongings from her husband's house.

Repeated visits to CAW office at Nanak Pura police station for the past six months have left her without any hope of getting justice. Justice delayed is justice denied says her father Mr. N.D. Chawla a head clerk in the vigilance department of Municipal Corporation of Delhi.

Mr. Chawla's efforts to retrieve his daughter's belonging (streedhan) from the in laws have proved futile as he suspects that the police are in the connivance with the in-laws. Besides jewellery, VCP, furniture, utensils and Rs. 25,000/- in cash, Loveleen's original academic certificate and three blank papers with her signature are in their possession. Chawla alleged.

Lovleen who was married to Rakesh Kathuria on January 15, 1992 was sent back to her parents' house at Vishnu Garden just after 4 months. Lovleen alleged that she was harassed, humiliated and even beaten up by her in laws and also her husband, when she failed to fulfilll their demand for a colour TV, scooter and refused to get money from her father.

When the two parties failed to resolve the issue, Lovleen filed a complaint with the CAW cell in December to retrieve the streedhan which her in laws refuse to return.

However several hearing, at the police station did not yield any result which forced Mr. Chawla to meet Deputy Commissioner of Police.

They were asked to meet the investigating officer Mr. Satish Chandra Sharma. He alleged that the staff of CAW was rude to them and had even abused them in the filthiest language several times. "I feel that the police are hand in glove with the Lovleen's in laws who neither come for the hearing. Nor do they every comply with the orders of IO but they get away with everything." He said.

On March 5, this year, the Assistant Commissioner, CAW Cell directed Loveleen's in laws to pay Rs. 50,000/- to Mr. Chawla within 10 days and resolve the issue. But no payment has been made so far, Mr. Chawla said.

Mr. Chawla even has met the Additional Commissioner of Police (Crime) a couple of times in this connection. What he has received is only assurances from him.

4. Lovleen was married to Rakesh Kathuria, son of the first respondent. Evidenced from the newspaper report, the husband and wife were having a matrimonial dispute.

5. Feeling offended by the newspaper report and alleging that the father and the son were defamed, first respondent and his son (who has since died) filed a complaint in the Court of Chief Metropolitan Magistrate under Section 499/500 IPC.

6. Whereas Lovleen was imp leaded as accused No. 6 and her father, N.D. Chawla, was imp leaded as accused No. 5, petitioners herein were imp leaded as accused Nos. 1, 2 and 4.

7. Before summoning order was passed by the learned Metropolitan Magistrate to whom the complaint was assigned for adjudication, a settlement took place between the complainants and Ms. Lovleen and her father. As per the settlement Lovleen and her husband Rakesh Kathuria agreed to withdraw all criminal and civil proceedings against each other as also their family members and dissolve their marriage by obtaining a decree of divorce by mutual consent.

8. Pursuant to the settlement FIR lodged by Lovleen against the complainants under Section 498A/406 was got quashed. The couple separated after obtaining a decree of divorce by mutual consent. Complainants made a statement in the complaint with which I am dealing today to the effect that having settled the dispute with N.D.Chawla and Lovleen they were not desirous of prosecuting the same against said 2 accused. The result was that accused No. 5 and 6 were discharged. Summoning order was issued against the petitioners.

9. A two fold contention has been urged by learned Counsel for the petitioners seeking quashing of the summoning order against them. It is firstly urged that as per the complaint principal tort feaser were Lovleen and her father N.D. Chawla. At best, role of the petitioners would be of aiding and abetting. Learned Counsel submitted that having dropped the complaint against the principal tort feasers, the complaint could not be prosecuted against the petitioners. Second submission made was that the allegations in the complaint did not attract Section 499 IPC against the petitioners.

10. To appreciate the two submissions made, a brief pen profile of the complaint may be noted.

11. After setting out the description of the accused facts have been averred pertaining to the marriage of complainant No. 2 with Lovleen followed by assertions that the couple separated. Next followed by the averments pertaining to the afore-noted newspaper report.

12. Alleging that the newspaper 'The Hindu' has a wide circulation, it is stated in the complaint that accused No. 5 and 6 i.e. father of Lovleen levelled false allegations with a mala fide intention to blackmail the complainants. It has been stated in the complaint that Lovleen took back all her dowry articles and streedhan. It is stated that the news item has defamed the complainants. Pertaining to the petitioners, relevant averments are in para 14 of the complaint. The same reads as under:

14. That the accused Nos. 1 to 4 without verifying the truthfulness of allegations levelled by the accused No. 5 and 6 published the said news. However, in the said news accused Nos. 1 to 4 have mentioned that these allegations have been levelled by accused Nos. 5 and 6. From the said news published by accused Nos. 1 to 4 it is clear that they have deliberately published and printed the said news item in the said newspaper and committed offences punishable under Sections 499/500 IPC and the complainants reserve their right for claim damages against the accused persons for the loss of their reputation.

13. A bare perusal of para 14 of the complaint evidences that the gravement of allegations against the petitioners is that they published what was alleged by Lovleen and her father without verifying the truth of the allegations.

14. Section 499 of the Indian Penal Code reads as under:

499. Defamation. - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1. ...

Explanation 2. ...

Explanation 3. ...

Explanation 4. ...

15. A bare perusal of Section 499 of the Indian Penal Code shows that knowledge or having reasons to believe that the offending imputation will harm the reputation of a person is the sine qua non of the offence under Section 499 of the Indian Penal Code.

16. Thus, to be actionable, a complaint must state that the maker or publisher of the offending words knew or had reasons to believe that the imputation will harm the reputation of the person concerned or it must be averred that the maker or the publisher intended to harm the reputation of the person forming subject matter of the statement.

17. Qua the petitioners, material averments attracting Section 499 of the Indian Penal Code are lacking.

18. A perusal of para 14 of the complaint shows that the draftmen of the complaint had in mind the ninth exception to Section 499 of the Indian Penal Code which protects the maker of a statement if he establishes that the statement was made in good faith. It needs hardly to be clarified that he who claims good faith must show that before making the statements he had made inquiry with due care and attention and was satisfied about the truth of the imputation.

19. Unfortunately, the draftman of the complaint failed to appreciate that good faith was a defense and had to be established by the maker of the complaint. But, before the maker of the statement could be called to account for his statement, it had to be alleged and proved by the complainant that the offending words were used or published with an intention to harm the reputation of the person against whom the statement was made or that the maker of the statement had knowledge or reasons to believe that the imputation would harm the person who was the subject matter of the statements.

20. Thus, on the second contention urged, the petition must succeed.

21. In respect of the first submission, whether or not what was published in the newspaper was true or false cannot be established by the publisher save and except through the evidence of the makers of the statement. Thus, truthfulness of the statement made by Lovleen and her father to the press would require summoning of said 2 persons as witnesses.

22. Having chosen to drop proceedings against Lovleen and her father, complainants cannot be permitted to indirectly achieve what they cannot achieve directly.

23. Lovleen and her father have been freed of all bondage pertaining to, arising out of and connected with the matrimonial bond between Lovleen and complainant No. 2. In my opinion, they being the principal tort feasers, complaint cannot be allowed to continue against the printer and the publisher or for that matter editor of the newspaper who at best would be guilty of abetting the commission of the offence under Section 499 IPC. My reason for so holding is that there are no averments in the complaint that the petitioners published the offending news item with an intent to defame the complainants. Charge against the petitioners is, as per para 14 of the complainant, that they did not verify the truth of the allegations levelled by accused Nos. 5 and 6 before publishing the news item. It is further relevant to note that the complaint nor the summoning order has proceeded on the basis that qua the petitioners case is made out under Section 499 IPC read with Section 107 IPC or read with Section 34 IPC. There is no allegation of conspiracy, i.e. Section 120B IPC is not attracted.

24. The petition is accordingly allowed.

25. Summoning order as also the complaint against the petitioners is quashed.