Ht Media Ltd. vs K.T.S. Sarao & Anr
2011 Latest Caselaw 4399 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.M.C.No. 1981/2011

                                      Date of Decision : 09.09.2011

HT MEDIA LTD.                                   ...... Petitioner
                                  Through: Mr. Madhur Dhingra With
                                           Ms. Harleen Kaur, Advs.

                                    Versus

K.T.S. SARAO & ANR.                         ......         Respondents

Through: None CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (oral)

1. This is a petition filed by the petitioner under Section 482 Cr.P.C.

for quashing of the criminal complaint bearing no.1578/2001

titled Prof.K.T.S.Sarao vs. Ms. Bai Ai Lian & Ors., as well as a

prayer for quashing of order dated 07.12.2009 passed by the

learned Magistrate, summoning the petitioner as an accused in

the case.

2. Briefly stated the facts leading to the filing of the present

petition are that the respondent herein filed a complaint against

Ms. Bai Ai Lian and four others, namely, Ms. Vanita Chitkara

(Reporter), Mr. Kamlesh Singh (Editor), Mr. Sameer Kapoor

(Publisher) and M/s H.T. Media Ltd. (Printer).

Crl. M.C. No.1981/2011                                              Page 1 | 9
 3.      The      allegations     made     in    the     complaint    were   that    the

        respondent/complainant            was        working   as   a   professor    at

University of Delhi and had an impeccable reputation and high

status in the society. On account of his aforesaid stature, he

had commanded immense respect amongst his superiors,

colleagues, subordinates, relatives and friends etc.

4. It is alleged that accused no.1/Ms. Bai Ai Lian is the resident of

China and Phd. Scholar in the Department of Buddhist Studies.

Somewhere around on 29.7.2002, she is alleged to have made

false accusation of sexual harassment against the

complainant/respondent being the Head of the Department of

Buddhist Studies.

5. It is alleged that, thereafter, letters dated 11.9.2002 and

19.9.2002 were written by the accused and she had sought an

apology and withdrawal of the complaint that was purported to

have been made by her against the complainant. In the

meantime, the Vice Chancellor of University of Delhi had

constituted an Enquiry Committee, which submitted its report on

29.9.2002, concluding that "there is not enough evidence to

substantiate the charges of sexual harassment beyond

reasonable doubt" and accordingly directed the closure of the

enquiry.

Crl. M.C. No.1981/2011 Page 2 | 9

6. It is alleged that accused nos. 2 to 5, as detailed herein above,

are jointly and severally responsible for having indulged in

reporting, editing, publishing, printing and circulating amongst

the general public a defamatory article against the

respondent/complainant through their newspaper titled

"MetroNow" dated 19.11.2007. It was distributed in and around

University of Delhi under the heading "Chinese Girl's DU

Torture". This report is stated to have appeared on the front

page, i.e. page no.1 as well as on page no.2 under the heading "

I Respected Him.....Like God". It resulted in filing of a complaint

against all the five persons, out of whom the present petition has

been preferred only by accused no.5 - M/s HT Media Ltd. It is

alleged to have printed a defamatory news report and therefore,

it was accused of an offence under Sections

499/500/502/34/120B IPC. The complaint contained the alleged

defamatory article along with the complete documents like letter

dated 19.9.2002 tendering apology and withdrawal of the

complaint dated 29.9.2002 issued by the Registrar of University

of Delhi. The relevant pages of the newspaper report, legal

noticed dated 19.12.2007 and 06.3.2008 purported to have been

issued by the respondent were annexed as Annexure P-6 to the

present petition.

Crl. M.C. No.1981/2011 Page 3 | 9

7. The respondent/complainant examined himself as CW1 and

proved the aforesaid documents as Exhibit CW1/A to H. In his

statement, the respondent/complainant, Prof. K.T.S. Sarao

supported the averments made in the complaint. In addition to

his own testimony, the respondent/complainant also examined

two more witnesses, CW2 - Dr. Arvind Kumar Singh and CW3 -

Dr. Sanjay Kumar Singh, who have stated that they have read

the newspaper report appearing in "MetroNow" on 19.11.2007,

which according to them was false and defamatory in nature. It

is further stated by them that because of this report the image

of Prof. K.T.S. Sarao has got lowered in their estimation.

8. Learned Metropolitan Magistrate after recording the statement of

the respondent/complainant in terms of Section 200 and holding

an inquiry under Section 202 Cr.P.C, passed an order that

"primafacie there were sufficient grounds against the accused

persons for being summoned for an offence under Sections

499/500/501/502/34/121B IPC and accordingly, summoned all

the accused persons including the present petitioner on

28.1.2011.

9. The present petitioner has filed the petition for quashing of the

complaint as well as the order of summoning without first

putting an appearance before the Learned Metropolitan

Crl. M.C. No.1981/2011 Page 4 | 9 Magistrate.

10. The contention of learned counsel for the petitioner is that the

learned M.M has not taken into account the declaration purported

to have been filed by the publisher of the newspaper with the

District Magistrate, Noida, Gautam Budh Nagar wherein it has

been stated as under:

                     "Volume No.1, Issue No. 243                 Regd. No.
                     DELENG/2007/19391,

Published for the Metropolitan Media Company Pvt. Ltd, by Sameer Kapoor at Express Building, 9-10 Bahadur Shah Zafar Marg, New Delhi 110002 and printed by him at HT Media Limited B-2, Sector 63, Noida 201307, Email: [email protected]; Editor:Kamlesh Singh. Reproduction in whole or in part without the written permission of the Publisher is prohibited."

11. Learned counsel for the petitioner has also in this regard referred

to few paragraphs of the judgments in Sunilakhya Chowdhury

vs. H.M. Jadwet and Anr. AIR 1968Cal266, 1968CriLJ736, Bilal

Ahmed Kaloo vs. State of A.P. (1997) 7 SCC 431 and Haji

C.H. Mohammad Koya vs. T.K.S.M.A. Muthukoya (1979) 2

SCC 8.

12. The second submission made by learned counsel for the

petitioner is that present petitioner could not have been made

liable for the offence of defamation much less, he could have

been summoned as there was absence of mens rea with regard

to this. Learned counsel for the petitioner has relied upon the

Crl. M.C. No.1981/2011 Page 5 | 9 case titled Harshendra Kumar D. vs. Rebatilata Koley and

Ors. (2011) 3 SCC 351(para 25) in order to contend that the

Court in exercise of its power under Sections 482 and 397 Cr.P.C

can take cognizance of public documents and quash the

complaint.

13. I have carefully considered the submissions made by the learned

counsel for the petitioner. I have also gone through the

judgments which have been relied upon by the learned counsel.

Suffice it would be to mention that this is common practice for

the counsel to refer to judgments without taking note of the fact

that the Apex Court has been consistently saying that while

dealing with the ratio laid down by the Apex Court in a particular

case, the same should not be applied like theorems and the

Court must examine the facts in the context in which the law is

laid down and also relate it to the facts in hand where the law is

sought to be relied. Reliance in this regard can be placed on

Haryana Financial Corporation vs. Jagdamba Oil Mills

(2002) 3 SCC 496. Another judgment which may be pertinent

to refer herein is Sushil Suri vs. CBI & Anr. AIR 2011 SC

1713, where the Apex Court has categorically observed that

even a change of one vital or material fact can result in different

application of law.

Crl. M.C. No.1981/2011 Page 6 | 9

14. On the basis of the aforesaid, in my considered opinion the

judgments which have been referred by the learned counsel for

the petitioner are not at all applicable to the facts of the present

case.

15. So far as the judgments Mohd. Koya (supra) and Bilal

Ahmed Kaloo (supra) are concerned, these are two judgments

where the matter has reached the Apex Court after the parties

had adduced their respective evidence and the merits of the case

have been gone into by the courts below, while as in the instant

case, the only thing which has been done is that learned MM

prima facie, after recording of the pre-summoning evidence has

come to the conclusion that it is a case where there is sufficient

evidence on record to proceed against the present petitioner.

Therefore, the quantum of proof which is required at the time of

final adjudication of the matter while deciding the guilt of the

accused is much higher as compared to the quantum which is

required at the time of summoning. There should be only prima

facie evidence, sufficient to proceed against the accused

persons. Accordingly, both these judgments in my view are not

applicable to the facts of the present case.

16. So far as the case of Sunlakhya Chowdhury (supra) is

concerned, that was a case where a revision has been preferred

Crl. M.C. No.1981/2011 Page 7 | 9 and admittedly the parameters of revision are different than the

parameters of exercise of power under Section 482 Cr.P.C. The

Supreme Court in the case titled State of Haryana vs. Bhajan

Lal 1992 Supp.(1) SCC 335 has clearly earmarked the powers of

quashing a complaint or an FIR and given seven illustrative

contingencies in which the said power should be exercised and

yet given a note of caution that it has to be done only sparingly

and not as a matter of course. In the instant case, Sections for

which the petitioner has been summoned are essentially of

defamation. At the time of summoning, the learned Magistrate

is not required to conduct a minute analysis of the evidence

produced by the complainant. All that is required to be seen is

whether the learned Magistrate has applied his mind and found

sufficient reason to proceed against the accused persons. In the

instant case, the petitioner has recorded the statement of the

complainant/respondent as CW-1. Apart from this, the

statement of Dr.Sanjay Kumar Singh, CW-3, Dr.Arvind Kumar

Singh CW-2 and Mr.Ajit Nair, Advocate have been recorded. If

one goes through the statement of CW-2 and CW-3 they have

categorically stated that because this reporting of sexual

harassment by the complainant/respondent of the Chinese

student, the image of the complainant/respondent has been

Crl. M.C. No.1981/2011 Page 8 | 9 lowered in their estimation. This precisely is the crux of the

offence of defamation.

17. The plea taken by the petitioner that there is an agreement by

virtue of which it only does job work or does not print or publish

that paper essentially constitutes their defence which they have

to prove during the course of trial. They cannot be permitted to

file a series of documents in the High Court, which do not form a

part of the trial Court record and pray for quashing. This is

prohibited by Supreme Court in case titled State of Bihar Vs.

P.P.Sharma AIR 1991 SC 1260 as well as in case titled State of

Orissa Vs. Debendra Nath Padhi AIR 2005 359. Only such of

the documents as form part of the Trial Court record can be the

basis for considering the case for quashing of the complaint or

the summoning order.

18. In view of the aforesaid reasons, I am of the considered view

that the pleas which have been raised by the learned counsel

for the petitioner for quashing of the complaint or the

summoning order are essentially constituting his defence which

cannot be a ground or basis for quashing of the complaint.

Accordingly, the petition is dismissed with a cost of `10,000/-.

                                                                      V.K. SHALI,J
SEPTEMBER 09, 2011/KA


Crl. M.C. No.1981/2011                                                        Page 9 | 9