Editor Hindustan Times & Anr. vs Azadi Bachao Andolan (Delhi Unit) ...
2011 Latest Caselaw 4095 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl. M. C. No.1273/1997

                                     Date of Decision : 24.08.2011

EDITOR HINDUSTAN TIMES & ANR.        ..... Petitioners
                    Through: Mr.A.J.Bhambhani, Adv.


                                   Versus



AZADI BACHAO ANDOLAN (DELHI UNIT)
& ORS.                             ...... Respondents
                   Through: Mr. A. K. Singh, Advocate
                             and Mr. Anay Baury,
                             Advocate

                                    And

Crl. M. C. No.1304/1997

M/S PHIL & CO LTD. & ANR.                         ..... Petitioners
                      Through:              Mr.A.J.Bhambhani and
                                            Ms.Nisha   Bhambhani,
                                            Advs.
                                   Versus

STATE & ANR.                                     ...... Respondents
                                   Through: Mr.A.K.Singh and
                                            Mr.Anay Baury, Advs.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI




Crl. M.C. No.1273 & 1304 of 1997                       Page 1 of 17
 1.     Whether Reporters of local papers may be
       allowed to see the judgment?
2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be reported
       in the Digest ?

V.K. SHALI, J.

1. These are two criminal miscellaneous main petitions filed

under Section 482 Cr.P.C. First petition is titled The

Editor Hindustan Times and Vs. Azadi Bachao Andolan

(Delhi Unit) and others which bearing Crl. M.C. No.

1273/1997 and the second is M/S Phil and Company Ltd.

And Anr. Vs. State and another bearing Crl. M.C.

No.1304/1997.

2. In both these petitions, the order dated 26.03.1997

passed by learned Chief Metropolitan Magistrate is

challenged. Apart from the challenge to the said order a

prayer for quashing of the entire complaint against the

petitioners has been made on the ground that the

criminal proceedings initiated against both the petitioners

is a gross abuse of processes of law. It may be also

pertinent to mention here that by virtue of impugned

order the learned Chief Metropolitan Magistrate has taken

cognizance of the offence under Section 3 and 6 of the

Indecent Representation of Women Act, 1986 read with

Section 292 IPC on the ground that the advertisement

displayed in the Hindustan Times on 5.5.1996 which

were got inserted by M/s Phil & Company Ltd. so far as

Konica Reel is concerned and the other by Mohan Lal and

Sons showing the boy in an undergarment and the girl in

swim suit were violating the aforesaid provisions.

3. Brief facts of the case are that on 23.05.1996 a

complaint came to be filed by one Shri V. P. Srivastava

claiming himself to be President of Azadi Bachao Andalon

against the Deputy Commissioner of Police of Crime

Branch before the CMM which reads as under:

"In the Court of Chief Metropolitan Magistrate, Tis Hazari, Delhi In the matter of :

               Shri V.P.Srivastava,
               S/o Shri M.M. Srivastava,
               R/o 8/5, Roop Nagar,
               Delhi-110007          ......
                     Petitioner
                                Vs.
               Dy. Commissioner of Police,
               Crime Branch,




                New Delhi              ......
                   Respondent

               Sir,
                       Most respectfully showeth:

That the applicant/petitioner wish to bring to the kind notice of this Hon'ble Court regarding the offences being committed by the undernoted offenders and the applicant/petitioners submit that the offenders/respondents may kindly be summoned by this Hon'ble Court for the purpose of seeking their explanation in connection with the penal offences being committed by him.

2. That the applicant/petitioner has placed on record documentary evidence visa-vis.

(a) Recorded cassettes of "Kam-ki-Batein" telecaste by All India Radio F.M.

(b) Obscene posters of adult films appearing on the city walls. The copies of complaint in four Police stations are enclosed. The obscene posters have reappeared and are present to-day. (3) That the applicant/petitioner further place on present the vulgar and obscene advertisements appearing in the Hindustan Times on May 5, 1996 in their daily news paper. Copies enclosed.

(4) Since the penal offences are being committed and investigating agency i.e. the Crime Branches not taking cognizance.

                     It is, therefore, prayed that the
               following   offenders     may     kindly  be
               summoned by this Hon'ble Court.
        (i)    The Director All India Radio.




        (ii)    The Manager, Morie Stopes, the sponsorer
               of Kam-ki-Batein.

(iii) The Manager Times F.M., the co-sponsorer.

(iv) (ii) Editor, The Hindustan Times, at Kasturba Gandhi Marg, New Delhi.

(v) (iii) The Proprietor Mohanlal Sons, Central Mkt., Lajpat Nagar, B-Block, Connaught Place

(vi) (iv) Distributor of "Konica Colour Film.

Sd/-

(V.P.SRIVASTAVA) Petitioner/applicant New Delhi.

Dated : 23.5.1996

Through

(Surender Mighlani) Advocate"

4. Along with the complaint there were two advertisements

appearing in the Hindustan Times one of which was

purported to have been issued by Mohan Lal Sons,

Connaught Place and other issued by M/s Konica

photographic reel.

5. The complaint on presentation before the learned Chief

Metropolitan Magistrate shows that for the first time on

20.08.1996 the learned Chief Metropolitan Magistrate

issued notices to different parties ultimately only the

Editor of the Hindustan Times and M/s Phil and Co., a

company which had got the advertisement of Konica

inserted were supplied copy of the complaint and

proceeded against after hearing arguments.

6. The learned Chief Metropolitan Magistrate acting on the

basis of the aforesaid complaint passed a detailed order

taking cognizance of the offence against the aforesaid

two petitioners for the offence as have been detailed

herein above.

7. The petitioner feeling aggrieved by virtue of the aforesaid

order of summoning filed the present petitions which

came up for hearing for the first time on 02.05.1997, so

far as, petition bearing Crl. M.C.no.1273/1997 is

concerned and notice was directed to be issued to the

respondents namely Azadi Bachao Andolan and its

President Mr. V. P. Srivastava for 12.08.1997 and the

proceedings of the trial court were stayed. Similar order

was passed in Crl. M.C. No. 304/1997 on 06.05.1997.

8. The said stay order is operating till date i.e. for almost 14

years.

9. I have heard learned counsel for the petitioners

Mr.A.J.Bhambani and Ms. Seema Gulati for the

petitioners and Sh. A. K. Singh for the respondents.

10. Though Mr. A. K. Singh, learned counsel appearing for

the respondents has contended that he had appeared for

the complainant/respondents herein, before the learned

trial court as well as in the High Court but he has not

been in touch with his client for the last more than 10

years but nevertheless, he as as an officer of the Court

he will render all possible assistance.

11. The learned counsel for the petitioner has assailed the

order of the summoning as well as all the complaint on

account of various illegalities committed by the learned

Chief Metropolitan Magistrate in not observing the

procedure which is prescribed under Section 200, 202

Cr.P.C. before issuance of process under Section 204

Cr.P.C..

12. (a) The first contention of learned counsel for the

petitioner, Mr. Bhambani was that no pre-

summoning evidence was recorded and

consequently there was a clear violation of Section

200 Cr.P.C. It is contented that on receipt of the

complaint the learned Chief Metropolitan Magistrate

ought to have recorded the statement of the

complainant and thereafter held an inquiry and

proceeded to dispose of the complaint under

Section 203 or 204 Cr.P.C. On the contrary, it is

alleged that he proceeded to make the roving

inquiry of his own and issued the notices to the

petitioners.

(b) Secondly, it is said that the impugned order of

summoning does not show that the learned Chief

Metropolitan Magistrate took the cognizance suo

moto under Section 190 (1)(C) Cr.P.C.

(c) The third submission, which is made by learned

counsel for the petitioner is that a perusal of order

of summoning shows that as a matter of fact that

learned Chief Metropolitan Magistrate while

purportedly passing an order of summoning has

pronounced the petitioner as guilty of having

committed the offence of obscenity and violation of

Section 3 and 6 of the Indecent Representation of

Women Act 1986.

(d) The fourth submission is that the proceedings which

were initiated by the respondent/complainants were

in the nature of public interest litigation while as

there is no scope or provision under the criminal

law for initiation of pro-bono publico prosecution,

although any person can be a complainant but then

the procedure which is enshrined in the statute has

to be followed which recording of the statement of

the complainant holding of an enquiry and then

proceeding under Section 203 or 204 Cr.P.C.

(e) Last but not the least, it has been contended that

learned Chief Metropolitan Magistrate while passing

the impugned order of summoning has drawn

presumption without any basis which has resulted

in gross abuse of the processes of law.

13. I have considered carefully the submissions of the

learned counsel for the parties. I have also gone through

the record including that of the trial court. I find

substance in the submissions made by the learned

counsel for the petitioner that not only the order of

summoning is bad in law but also the way of order of

summoning is passed by learned Chief Metropolitan

Magistrate has resulted in gross abuse of processes of

law. The reasons for forming this view is because of the

following reasons.

(i) Section 190 of the Cr.P.C. clearly lays down as to

how a criminal Justice Machinery can be put in

motion. It can be put into motion in any of three

manners namely:

               (a)      By Complaint





                (b)      By Police Report

               (c)       By taking suo moto cognizance, by the

Magistrate on the basis of his personal

knowledge or on the basis of the

information placed before him.

(ii) Section 2 (d) Cr.P.C. defines the word complaint

and any person can be a complainant meaning

thereby a complainant need not be an aggrieved

person but at the same time the criminal law does

not know any concept of complaint as a pro-bono

publico.

(iii) Even if a complaint is made by a person who may

not be aggrieved, if he becomes complainant, it is

the duty of learned Magistrate to treat the said

complaint under Section 190 (a) Cr.P.C. and

proceed to record the statement of the complainant

under Section 200 Cr.P.C. and thereafter, hold an

enquiry under Section 202 Cr.P.C. and pass an

appropriate order under Section 203 Cr.P.C.

dismissing the complaint or proceeding against the

accused persons by issuing process under Section

204 Cr.P.C.

(iv) Even if the case is examined from the point of view

of Section 190(C) Cr.P.C. even then the order

cannot be sustained because the order of the

learned Magistrate does not show that he has taken

the cognizance suo moto or on the basis of

information given to him. On the contrary, he has

in the very first sentence of the impugned order, it

has been observed that this is a complaint as a pro

bono public. If it was considered to be a complaint

filed in public interest then pre summoning

evidence ought to have been recorded which is not

done.

14. Further at the stage of recording of the pre-summoning

evidence the proposed accused against whom the

complaint is filed, he is not to be summoned and even if

he puts in appearance without being summoned, he

cannot be permitted to participate. He can only observe

as to what is happening. The cause of action accrues to

the accused to assail the order only if he is summoned by

the learned Magistrate after holding an inquiry and

deciding to proceed against the accused under Section

204 Cr.P.C.

15. Coming back to the facts of the present case, the learned

Chief Metropolitan Magistrate despite having a long

experience and being well versed in criminal law has

fallen into a grave error and committed an illegality by

summoning the present petitioners even before recording

the pre-summoning evidence and holding an inquiry and

deciding to proceed against them by holding that there is

sufficient ground for proceeding against them under

Section 3 and 6 of the Indecent Representation of

Women Act, 1986 and Section 292 of IPC. This

procedure followed by the learned MM is totally illegal

and does not have the sanction of law. The learned CMM

had after issuing of notice before taking cognizance

started conducting a roving and fishing inquiry which is

totally illegal.

16. I feel that the job of the Judge is to follow the procedure

prescribed by law for proceeding against a person as an

accused which is prescribed under Section 190 Cr.P.C.

read with Section 200, 202 and 204. It is not the job of

the Judge to act as conscious keeper of the nation or the

society, so far as its moral values are concerned. He

cannot incorporate his personal knowledge personal

prejudice into the facts of the case in hand and thereby

assuming guilt of the accused and issue process against

them practically holding them guilty. Therefore, the

procedure which has been followed for the instant case

does not have the sanction of the law and moreover, it

has in my opinion caused serious prejudice against the

petitioners as they have been left nothing to show their

innocence . One is reminded of the law laid down by the

Apex Court in Maneka Gandhi AIR 1978 SC 597 that

deprivation of personal liberty of a person has to be in

accordance with due process of law. The law has been

interpreted as a law which is just fair and reasonable.

This procedure which is just fair and reasonable in the

instant case is laid down by the provisions of Section 200

to 204 Cr.P.C. for the purpose of proceedings against the

accused for holding that prima facie he has committed

an offence only when the said procedure is followed.

Since, this has not been done, I feel that impugned order

cannot be sustained because it has been resulted breach

of Sections 190(a), 200 and 202 Cr.P.C.

17. On the contrary in the impugned order, the learned Chief

Metropolitan Magistrate has quoted from the judgment of

the Apex Court in "Ranjit D. Udeshi Vs. State of

Maharastra AIR 1965 Supreme Court 881 and

Chandrakant Kutandas Kalodhar Vs. the State of

Maharastra & Others AIR 1970 Supreme Court

1390 Sanrevi Br.. Supreme Court 1967" and

practically given finding that advertisements published in

the Hindustan Times and got inserted by the petitioner

Phil and Co. are nothing but obscene.

18. I am of the view that holding such a detailed examination

of the advertisement without there being any evidence to

that effect unsustainable in the eyes of law. It is infact a

gross abuse of process of law and violating the statutory

rights of the petitioner to hold a fair trial qua them. This

also supports the plea raised by the learned counsel for

the petitioner that the trial court has proceeded it

impermissible assumptions.

19. For the reasons mentioned above, I am of the considered

opinion that both the order of summoning as well as the

complaint which has been filed by the respondent against

the petitioners is not only unsustainable in the eyes of

law but has also resulted in gross abuse of processes of

law, jeopardizing the liberty of the petitioners. More so

when they have remained tied down in the High Court for

the last 14 years. There will be no useful purpose

served now to remand the matter after setting aside the

summoning order because the complainant himself is not

traceable as claimed by his counsel.

20. I feel that pleas raised by the petitioners deserve to be

allowed. Accordingly, the impugned order dated

26.03.1997 and the consequent complaint which is

pending before the learned Chief Metropolitan Magistrate

are quashed.

V.K. SHALI, J.

AUGUST 24, 2011 b