Tata Motors Ltd. vs State
2009 Latest Caselaw 501 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

       CRL.REV.P. 16/2008 & CRL.M.A. No. 4301/2008

       TATA MOTORS LTD                        ..... Petitioner
                    Through: Mr. K.T.S. Tulsi and
                    Mr. Sidharth Luthra, Senior Advocates with
                    Mr. Sandeep Kapur, Mr. Mehul Gupta,
                    Mr. S. Trehan, Advocates.

                      versus


       STATE                                               ..... Respondent
                               Through: Mr.Jaideep Malik, APP.
                               Mr. Arun Bhardwaj, Senior Advocate with
                               Mr. Arunabh Chowdhury &
                               Mr. Arijit Bhumik, Advocates for
                               Interveners/applicants in Crl.MA 4301/08.


       CORAM:
       HON'BLE DR. JUSTICE S.MURALIDHAR

       1. Whether Reporters of local papers may be
          allowed to see the judgment?                       No
       2. To be referred to the Reporter or not?             Yes
       3. Whether the judgment should be reported in Digest? Yes

                          ORDER

12.02.2009

1. This revision petition under Section 397 read with Sections 401 and

482 of the Code of Criminal Procedure, 1973 (CrPC) is directed

against an order dated 9th October 2007 passed by the learned

Metropolitan Magistrate (MM), New Delhi dismissing Criminal

Complaint Case No. 911/1 of 2007 titled "Tata Motors Ltd. v.

Arindam Chaudhuri & Others" under Section 499/500/501/502 read

with Sections 34 and 35 IPC.

2. Aggrieved by the publication of an article titled: 'People's Car or

'Blood Car'? Is Ratan Tata bent on destroying the JRD legacy: Shame

in Singur published in the periodical "The Sunday Indian" Vol. I Issue

18, 5th to 11th February 2007, the petitioner filed the aforementioned

complaint in the Court of the learned MM against Arindam Chaudhuri,

Editor-in-Chief, The Sunday Indian; Malay Chaudhuri, its Chief

Consulting Editor; A. Sandeep, its Editor; Sutanu Guru, its Managing

Editor; Abhimanyu Ghosh, its Chief Executive Officer & Ashok Bose,

its Publisher & Printer. The complaint alleged that the article was

defamatory and lowered the esteem of the petitioner and its

management. The complaint set out the various alleged imputations in

the said article which according to the complainant attract the

aforementioned offences under the IPC

3. As part of the pre-summoning evidence led by it in support of the

complaint before the learned MM, the petitioner complainant

examined its Assistant General Manager (Law) as CW-1, Shri Chander

Singh Rawat, a UDC in the Office of the Registrar of Companies, NCT

of Delhi and Haryana as CW-2, Shri R.K. Saxena, Regional Customer

Support Manager of the petitioner as CW-3 and Major P.C. Sood,

General Manager A-One Motors as CW-4. The deponents stated, inter

alia, that the derogatory imputations in the article had harmed the long

standing reputation, goodwill and public image of the petitioner

company and that various dealers and customers of the petitioner had

on reading the article expressed their shock and dismay.

4. By a detailed order dated 9th October 2007, the learned MM

concluded that "the intention of the writer does not seem to defame the

complainant or harm the reputation of the complainant. No malice can

be made out from the article...no cognizance can be taken of the

offences on the basis of the allegations, as no prima facie case is made

out". The complaint was accordingly dismissed.

5. The present petition has been filed essentially on the ground that the

learned MM has in contravention of Sections 203 and 204 CrPC

exceeded his jurisdiction in dismissing the complaint in limine. It is

contended that instead of ascertaining whether on a consideration of

the complaint and the pre-summoning evidence a prima facie case had

been made out for summoning the accused for the offences mentioned,

the learned MM has discussed the merits of the complaint including

the possible defence of good faith that might have been taken by the

accused for justifying the publication of the defamatory article.

Crl. M.A. No. 4301 of 2008

6. At this stage, this Court would like to first take up Crl. M.A. No.

4301 of 2008 which is an application for intervention, filed purportedly

under Section 482 CrPC, by the persons against whom the

aforementioned complaint was filed. The prayer in this application is

that the applicants must be permitted to intervene and be impleaded as

party respondents 2 to 7 in the present revision petition.

7. Mr. Arun Bhardwaj, the learned Senior Counsel appearing for the

applicants submits that under Section 401 (2) CrPC if an adverse order

is going to be passed by this Court in this revision petition, which

might prejudice either the accused or any "other person" then such

person has to be mandatorily given an opportunity of being heard

either personally or by pleader in defence. Relying on the judgments

of the Supreme Court in Raghu Raj Singh Rousha v. Shivam

Sundaram Promoters (P) Ltd. 2008 (16) SCALE 369, and P.

Sundarrajan v. R. Vidhya Sekar (2006) 1 SCC (Cri) 345 and the

judgments of this Court in R.P. Sablok v. Kaushalya Devi 1982 Cri LJ

1342, and Mohd. Afzal v. Noor Nisha Begum 66 (1997) DLT 372 it is

submitted that this Court in its revisional jurisdiction has to give an

opportunity of hearing to the applicants before passing an order which

might prejudice them. Mr. Bhardwaj further submits that the prejudice

that might be caused is that the findings of the learned MM to the

effect that not even a prima facie case is made for proceeding against

the applicants in the criminal complaint might get set aside if this

Court were to allow the revision petition.

8. The plea of the applicants is opposed by Mr. K.T.S. Tulsi, learned

Senior Counsel appearing for the petitioner complainant. He points

out that there is no occasion at all for the applicants to be heard at this

stage. They are not accused persons as they are yet to be summoned.

According to him not even cognisance has been taken by the learned

MM of the offences. He points out that a distinction has to be drawn

between the pre-cognizance stage and the post-cognizance stage in a

criminal complaint. At the pre-cognizance stage there is no question of

the respondents in a criminal complaint being given an opportunity of

being heard in a revision petition under Section 401 (2) CrPC. This

distinction has been highlighted in the decisions of the Supreme Court

in Raghu Raj Singh Rousha (supra), Divine Retreat Centre v. State of

Kerala (2008) 3 SCC 542 and Prabha Mathur v. Pramod Aggarwal

(2008) 9 SCC 469. He also refers to the decision dated 4th March 2008

of the Bombay High Court in Kiran Gokuladas Kalantry v. Prithi

Paul Singh Sethi (Criminal Application No. 40 of 2008 in Criminal

Writ Petition No. 1148 of 2007) and of this Court in Chitra Narain v.

M/s. NDTV 109 (2004) DLT 394.

9. In the considered view of this Court this application filed by the

respondents in the criminal complaint, seeking intervention in the

present revision petition, is misconceived. None of the applicants has

yet been summoned in the criminal complaint; no process has been

issued against them. They, therefore, cannot be termed as `accused'.

No cognizance has been taken by the learned MM since the complaint

has been dismissed in limine. Therefore, the question of the applicants

being given an opportunity of hearing at this stage in terms of Section

401 (2) CrPC really does not arise. The law in this regard appers t be

well settled.

10. One of the early decisions where this point was considered was

Chandra Deo Singh v. Prokash Chandra Bose @ Chabi Bose AIR

1963 SC 1430. It was held by the Supreme Court that at the highest,

the respondents in a criminal complaint, when they were yet to be

summoned, could remain present either in person or through a counsel

with a view to be informed of what is going on and nothing more. The

rationale was "since the very question for consideration being whether

he should be called upon to answer a question which he has no right to

take part in the proceedings nor the Magistrate has any jurisdiction to

permit him to do so".

11. In A. K. Subbaiah v. State of Karnataka 1987 (4) SCC 557 the

Supreme Court discussed the scope of the proceedings under Sections

397 and 401 CrPC. It held, with reference to Section 401 (2) CrPC:

"Apparently this sub-section contemplates a situation where a person may not be an accused person before the Court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Section 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party."

12. In Mohd. Yosuf v. Afaq Johan (Smt) [(2006) 1 SCC 627] the

Supreme Court made a distinction between a pre-summon cognizance

stage and post-cognizance stage. It was opined that an order under

Section 156 (3) CrPC could not be passed if the MM intended to take

cognizance. In P. Sundarrajan v. R. Vidhya Sekhar (supra) it was

noticed that the High Court had considered the material produced by

the complainant before it "without taking into consideration the

defence that was available to the respondents". The complaint,

therefore, was at the post-cognizance stage. In those circumstances,

the Supreme Court observed that the persons against whom the

complaint was filed had to be heard in the revision petition before the

High Court.

13. In Prabha Mathur v. Pramod Aggarwal (supra) it was again

reiterated following the decision in Chandra Deo Singh that the

accused has no locus standi at the stage of investigation and he cannot

insist for hearing before process is issued against him. It was

emphasized that (SCC @ p. 473) "it is equally correct that if a person

has no locus standi or right of hearing, such right does not accrue in his

favour by an indirect process". However, on facts it was held that the

High Court had exceeded its revisional jurisdiction because it had

issued a direction to the learned MM to make further inquiry in the

matter and pass an appropriate order in accordance with law. Such a

direction, it was felt was prejudicial to the interests of the respondents

in the criminal complaint. In Divine Retreat Centre v. State of Kerala

(2008) 3 SCC 542 the High Court had directed an inquiry and an

investigation into the allegations. Therefore even while drawing a

distinction between such case and the other cases where no such

direction was given, the Supreme Court on facts held that an

opportunity of hearing had to be given to the accused.

14. In Raghu Raj Singh Rousha the question posed before the

Supreme Court was whether the High Court, in exercise of its

revisional jurisdiction under Sections 397 and 401 CrPC, could pass an

order "in the absence of the accused persons". In that case a complaint

had been filed in the Court of the learned ACMM, New Delhi for the

offences punishable under Sections 323, 382, 420, 34 etc., IPC

accompanied by an application under Section 156 (3) CrPC. The

learned MM refused to direct investigation and dismissed the

application filed by the complainant under Section 156(3) CrPC. The

complainant was asked by the learned MM to lead the pre-summoning

evidence and furnish a list of witnesses. Aggrieved by the

aforementioned order of the learned MM, the complainant filed a

revision petition before the High Court impleading only the State as a

party. On the very first day, the High Court passed an order allowing

the petition directing the police to hold a preliminary inquiry and

submit a report to the learned MM. This order was challenged in the

Supreme Court by the respondents in the said criminal complainant.

15. The issue considered by the Supreme Court in Raghu Raj Singh

Rousha is set out in para 10 of the said decision which reads as

follows:

"One of the questions which arises for consideration is as to whether the learned Magistrate has taken cognizance of the offence. Indisputably, if he had taken cognizance of the offence and merely issuance of summons upon the accused persons had been postponed; in a criminal revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court."

16. Thereafter the Supreme Court discussed the provisions of Sections

397 and 401 CrPC and the judgments of the Supreme Court including

Chandra Deo Singh, Mohd. Yosuf and P. Sundarrajan (supra). On

the facts in Raghu Raj Singh Rousha it was observed in para 18 as

under:

"18. Here, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156(3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code."

17. It is clear to this Court on a reading of the judgment in Raghu Raj

Singh Rousha that the Supreme Court was concerned with the case

where the learned MM had already taken cognizance of the offence.

Therefore, it could possibly be said that the accused named in the

complaint would have a legitimate grievance since they were already

in the picture and any order which had been passed in their favour

including or any order in the complainant's application under Section

156(3) CrPC could not be reversed without affording them a hearing.

18. The Bombay High Court has in Kiran Gokuladas Kalantry (surpa)

after noticing the judgment of the Supreme Court in A. K. Subbaiah

held that "there is a distinction to be drawn between a case where the

process had already been issued and where it had not". On the facts of

the case before the court it was held that the respondents in the

criminal complaint had no locus to be heard in the revision petition

since process had not been issued against them as yet. In Chitra

Narain v. NDTV in answer to the question whether the person against

whom the complaint is filed has a right to participate in a revision

petition, the answer was given in the negative. It was held (DLT,

p.398) that "unless a person becomes an accused after process is issued

against him, his presence is like any member of the public." It was

explained that "a person against whom a complaint is filed does not

become an accused until Court decides to issue process against him."

19. The decision of the learned Single Judge of this Court in Mohd.

Afzal v. Noor Nisha Begum (supra) does help the applicants since it

was at a stage after summons had been issued to the accused. Again in

R.P. Sablok v. Kaushalya Devi (supa) it was at the post-cognizance

stage and therefore, distinguishable on facts.

20. The legal position that emerges from the above decisions of the

Supreme Court and this Court is as under:

(1) There is a distinction to be drawn between the criminal complaint cases which are at the pre-cognizance stage and those at the post-cognizance stage. There is a further distinction to be drawn between the cases at the post-cognisance but pre- summoning stage and those at the post-summoning stage.

(2) It is only at the post-summoning stage that the respondents in a criminal complaint would answer the description of an `accused.' Till then they are like any other member of the public. Therefore at the pre-summoning stage the question of their right to be heard in a revision petition by the complainant in their

capacity as "accused" in terms of Section 401 (2) CrPC does not arise.

(3) At the post-cognisance but pre-summoning stage, a person against whom the complaint is filed might have a right to be heard under the rubric of `other person' under Section 401(2) CrPC. If the learned MM has not taken the cognizance of the offence then no right whatsoever accrues to such "other person' to be heard in a revision petition.

(4) Further, it is not that in every revision petition filed by the complainant under Section 401(2) CrPC, a right of hearing has to given to such "other person" or the accused against whom the criminal complaint has been filed. The right accrues only if the order to be passed in the revision petition is prejudicial to such person or the accused. A order giving a specific direction to the learned MM to either proceed with the case either at the post- cognisance or post-summoning stage or a direction to register an FIR with a direction to the learned MM to proceed thereafter might be orders prejudicial to the respondents in a criminal complaint which would therefore require them to be heard prior to the passing of such order.

21. As far as the present case is concerned, the learned MM did not

summon any of the applicants against whom the criminal complaint

was filed. The learned MM did not even taken cognizance of the

offences. The complaint was dismissed in limine. Therefore, clearly

there is no question of the applicants being heard at this stage in the

revision petition.

22. Even if the applicants were to be "other persons" for the purpose of

Section 401 (2) Cr PC, their right to be heard arises only when and if

this Court proposes to pass an order prejudicial to them. The

respondents cannot possibly anticipate what order this Court is going

to pass. In seeking intervention at an anterior stage, they are really

seeking to put the cart before the horse. The Court might well not agree

with the complainant and dismiss the revision petition. In that sense,

their application is premature.

23. In any event, as will be apparent hereinafter, this Court is

proposing only to place the complaint again before the learned MM for

taking a decision afresh whether any prima facie case is made out for

proceeding against the applicants for the offences mentioned in the

complaint. No direction is being issued to the learned MM to decide

the complaint, or even the existence of a prima facie case, one way or

the other. The learned MM, while deciding afresh, may decide any

which way. Such an order by this Court clearly cannot be prejudicial to

the applicants. It further requires to be clarified that an order of this

Court setting aside an order of the learned MM on the ground that it is

in excess of jurisdiction cannot be an order that is prejudicial to anyone

for the simple reason that such order of the learned MM is not an order

in the eye of the law.

24. For the aforementioned reasons, this Court finds no merit in this

application and it is dismissed as such.

CRL.REV.P. 16/2008

25. The arguments of Mr. Tulsi, in support of this revision petition

have been heard at length. He submits that the learned MM exceeded

his jurisdiction in examining the complaints on merits and in particular

deciding whether the article in question was written in good faith.

Relying on the judgment in Sewakram Sobhani v. R.K. Karanjia,

Chief Editor, Weekly Blitz (1981) 3 SCC 208, he submits that the

defence of good faith cannot be examined at the summoning stage but

only after evidence is led by the accused at the trial. He also refers to

the decision in M.Arumugam v. Kittu JT 2008 (11) SC 638.

26. A perusal of the impugned order shows that the learned MM has

not merely discussed the merits of the complaint, but has indeed

exceeded his jurisdiction in considering whether the respondents would

have a valid defence under the doctrine of `good faith'. The learned

MM in particular has observed as under:

"The intention of the writer does not seem (sic seems) to defame the complainant and to harm the reputation of the complainant. No malice can be made out from the article. The words `Blood car' and `War Zone' only seem to be `exaggeration' in the circumstances which does not mean that the comment is unfair specifically when it seems to be made in good faith and for protection of public interest. In the circumstances no cognizance can be taken of the offences on the basis of the allegations, as no prima facie case is made out." (emphasis supplied)

27. In purportedly concluding that a prima facie case is not made out,

the learned MM has analysed the article in depth and examined

whether the defence of good faith on the part of the persons against

whom the complaint was filed was made out. The observations of the

Supreme Court in the concurring judgment of Justice O. Chinnappa

Reddy in Sewakram Sobhani (supra) made in para 18, although in the

context of what the High Court ought not to have done, apply afortiori

to the learned MM. They read thus (SCC, p.219):

"Several questions arise for consideration if the Ninth Exception is to be applied to the facts of the present case. Was the Article published after exercising due care and attention? Did the author of the Article satisfy himself that there were reasonable grounds to believe that the imputations made by him were true? Did he act with reasonable care and a sense of responsibility and propriety? Was the article based entirely on the report of the Deputy Secretary or was there any other material before the author? What steps did the author take to satisfy himself about the authenticity of the report and its contents? Were the imputations made rashly without any attempt at verification? Was the imputation the result of any personal ill will or malice which the author bore towards the complainant? Was it the result of any ill will or malice which the author bore towards the political group to which the complainant belonged? Was the article merely intended to malign and scandalise the complainant or the party to which he belonged? Was the article intended to expose the rottenness of a jail administration which permitted free sexual approaches between male and female detenus? Was the article intended to expose the despicable character of persons who were passing off as saintly leaders? Was the article merely intended to provide salacious reading material for

readers who had a peculiar taste for scandals? These and several other questions may arise for consideration, depending on the stand taken by the accused at the trial and how the complainant proposes to demolish the defence. Surely the stage for deciding these questions has not arrived yet. Answers to these questions at this stage, even before the plea of the accused is recorded can only be a priori conclusions.

'Good faith' 'public good' are, as we said, questions of fact and matters for evidence. So, the trial must go on." (emphasis supplied)

The recent decision of the Supreme Court in M.Arumugam reiterates

the "well-settled principle of law" that "those who plead exception

must prove it" and that can happen only at the trial of a case.

28. It is, therefore, plain that the question before the learned MM at

the pre-summoning stage was not whether the defence of good faith

was made out. Such question would arise for consideration only at the

post-summoning stage when the accused are called upon to lead their

defence and if and when they seek to show that the article in question

was published in good faith. Any other defence that the accused may

have would also be required to be considered only at the stage of trial.

At the present stage all that the learned MM was required to do was to

form an opinion whether on the basis of the complaint and the pre-

summoning evidence, a prima facie case was made out for taking

cognisance and summoning the persons against whom the complaint

was filed for the offences mentioned in the complaint. The learned

MM was not required to do anything more at this stage. In the

considered view of this Court, the learned MM has exceeded his

jurisdiction in considering a defence which could possibly arise only at

a later stage.

29. Accordingly, the impugned order dated 9th October, 2007 is set

aside. Complaint Case No. 911/1 of 2007 titled "Tata Motors Ltd. v.

Arindam Chaudhuri & Others" under Section 499/500/501/502 read

with Sections 34 and 35 IPC stands restored to file and will now be

placed for hearing afresh before the MM for taking a fresh decision

whether any prima facie case is made out on the basis of the complaint

and the pre-summoning evidence to summon the accused for the

offences mentioned in the complaint.

30. Complaint Case No. 911/1 of 2007will be listed before the learned

ACMM on 24th March 2009 for being taken up by either that court or

for being assigned to any other court.

31. The petition is accordingly allowed with no order as to costs.

32. Order dasti to the parties.

S.MURALIDHAR, J FEBRUARY 12, 2009 dn