Delhi High Court
Ghanshyam Bhagwan Aayeer vs State & Anr. on 24 February, 2014
$~28, 31 & 32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ (i) CRL.M.C. 953/2014
GHANSHYAM BHAGWAN AAYEER ..... Petitioner
Through: Mr. Rajiv Nayar, Sr. Advocate
with Mr. Ajay Bhargava, Mr. Rajiv
Shankar and Mr. Rajiv Bhatnagar,
Ms. Gauri Rishi and Ms. Esha
Sandhu, Advocates
versus
STATE & ANR .....Respondents
Through: Mr. P.K. Mishra, Additional Public
Prosecutor for respondent-State
Mr. Gurinder Pal Singh, Advocate
for Respondent-complainant
+ (ii) CRL.M.C. 959/2014
OPEN MAGAZINE ..... Petitioner
Through: Mr. Rajiv Nayar, Sr. Advocate
with Mr. Ajay Bhargava, Mr. Rajiv
Shankar and Mr. Rajiv Bhatnagar,
Ms. Gauri Rishi and Ms. Esha
Sandhu, Advocates
versus
STATE & ANR .....Respondents
Through: Mr. P.K. Mishra, Additional Public
Prosecutor for respondent-State
Mr. Gurinder Pal Singh, Advocate
for Respondent-complainant
Crl.M.C.Nos.953, 959, & 960 of 2014 Page 1
+ (iii) CRL.M.C. 960/2014
SUBHRANGSHU CHAKRABARTI ..... Petitioner
Through: Mr. Rajiv Nayar, Sr. Advocate
with Mr. Ajay Bhargava, Mr. Rajiv
Shankar and Mr. Rajiv Bhatnagar,
Ms. Gauri Rishi and Ms. Esha
Sandhu, Advocates
versus
STATE & ANR .....Respondents
Through: Mr. P.K. Mishra, Additional Public
Prosecutor for respondent-State
Mr. Gurinder Pal Singh, Advocate
for Respondent-complainant
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% 24.02.2014
Crl.M.A No.3214/2014 in Crl.M.C.No.953/2014 (Exemption)
Crl.M.A No.3233/2014 in Crl.M.C.No.959/2014 (Exemption)
Crl.M.A No.3255/2014 in Crl.M.C.No.960/2014 (Exemption)
Allowed subject to all just exceptions.
CRL.M.C. 953/2014 & Crl.M.A.3213/2014 (Stay)
CRL.M.C. 959/2014 & Crl.M.A.3232/2014 (Stay)
CRL.M.C. 960/2014 & Crl.M.A.3234/2014 (Stay)
In the above-captioned three petitions, quashing of complaint
No.86/1/2013 titled as Mr. Navneet Kalra v. Open Magazine & Ors. and
summoning order of 20th December, 2013 under Section 500/501 of
Indian Penal Code, 1860 is sought on the ground that petitioners in these
three petitions are neither the editor nor the publisher or printer of the
Crl.M.C.Nos.953, 959, & 960 of 2014 Page 2
alleged defamatory article and so their prosecution in the instant
complaint is unsustainable on the face of it. To contend so, reliance was
placed by learned senior counsel for petitioners upon a decision of
Coordinate bench of this Court in Shobna Bhartia & Ors. v. NCT of Delhi
& Anr. 144(2007) DLT 519. To contend that petitioner company-Open
Magazine cannot be prosecuted for offence of defamation, reliance was
placed upon decisions in Raymond Ltd. & Ors. v. Rameshwar Das
Dwarkadas Pvt. Ltd. 2013 (2) JCC 1227, South Indian Bank Ltd. v. Paul
Vareed Cherubathoor (2013) 4 KLJ 815 and Kalpnath Rai v. State.
(1997) 8 SCC 732. At the hearing, it was pointed out by learned senior
counsel for petitioners that petitioners-Ghanshyam Bhagwan Aayeer and
Subhrangshu Chakrabarti are not residing within the territorial
jurisdiction of trial court and so prior to issuance of process against them,
an inquiry under Section 202 Cr.P.C. is mandatory and to assert so,
reliance was placed upon decisions in National Bank of Oman v.
Barakara Abdul Aziz & Anr. (2013) 2 SCC 488 and
Crl.M.C.No.4332/2013 The Printers Mysore Pvt. Ltd. V. Anant Media
Pvt. Ltd. decided on 10th October, 2013.
Upon notice of these petitions, learned counsel for respondent-
complainant had raised question of maintainability of these petitions
under Section 482 Cr.P.C. as the impugned order is revisable.
On the maintainability aspect, learned senior counsel for petitioners
had relied upon decision in G.Sagar Suri & Anr. v. State of UP & Ors.
(2000) 2 SCC 636.
Learned counsel for respondent-complainant had placed reliance
upon decisions in K.M.Mathew v. K.A.Abraham AIR (2002) SC 2989,
Crl.M.C.Nos.953, 959, & 960 of 2014 Page 3
Mohit @ Sonu & Anr. V. State of UP & Anr. AIR 2013 SC 2248, Iridium
India Telecom v. Motorola Incorporated & Ors. (2011) 1 SCC 74 and
Shrimati Nagawwa v. Veranna Shivalingappa Konjalgi & Ors. AIR 1976
SC 1947 to contend that scope of inquiry while examining the validity of
summoning order is limited and even a company can be made accused
and the question of liability is required to be determined at trial and not at
this initial stage.
Upon hearing, both the sides and on perusal of impugned
complaint and common summoning order, I find that since the challenge
to the impugned summoning order is on identical grounds in these
petitions, therefore, the above-captioned three petitions were heard
together and are being disposed of by this common order.
On the maintainability aspect, this Court finds that impugned
summoning order, which is common in these three petitions, is indeed
revisable but if petitioners are able to show that the complaint in question
itself does not disclose any offence qua them, then there is no bar to seek
quashing of such a complaint. However in the instant case, upon a bare
perusal of the complaint in question, it cannot be outrightly said that the
filing of complaint for defamation qua petitioners is an abuse of process
of court. Since revisional jurisdiction of Sessions Court and this Court is
concurrent, therefore, these three petitions are treated as revision
petitions. As these petitions have been already heard at length, therefore
they are being decided by this Court by this common order.
Petitioners in the above-captioned first and third petitions are
Directors of accused-company, who is petitioner in above-captioned
second petition. During the course of hearing, it was vehemently
Crl.M.C.Nos.953, 959, & 960 of 2014 Page 4
contended by learned senior counsel for petitioners that legal notice
(Annexure P-5) was not sent to petitioners-Ghanshyam Bhagwan Aayeer
and Subhrangshu Chakrabarti and so, their summoning vide impugned
order is untenable. During the course of hearing, it was put to learned
counsel for respondent-complainant, to point as to what are the
allegations against the three petitioners herein and attention of this Court
was drawn on behalf of respondent-complainant to paragraph 10 of
impugned complaint, which reads as under:-
"That the Accused No.1 is the magazine in which the
article was published. All other accused persons i.e.
Accused No.2 to 7 are liable for the aforesaid defamatory
and false writings since they have the direct
responsibility for the writing and publication of the said
article and also had the intention and knowledge that the
said imputations would harm the reputation of the
complainant. All the accused persons further had the
knowledge of the falsehoods, distortions and innuendo
contained in that article. As a result of that article and
the manner in which it was written, presented and
published including its publication on the internet, the
accused persons have not only directly and/or indirectly,
harmed the reputation of the complainant in the
estimation of others but have also lowered the moral
and/or intellectual character of the complainant. The
said article has lowered the credit of the complainant
and has disgraced the complainant in the eyes of others.
None of the exceptions of Section 499 is attracted."
No doubt, in a revision petition against summoning order, the
scope of inquiry is limited but trial court is expected to apply its mind
Crl.M.C.Nos.953, 959, & 960 of 2014 Page 5
before issuing a summoning order to find out whether the averments
made in the complaint prima facie constitute an offence for which a
person is summoned as an accused. To test the validity of a summoning
order, the parameters to be applied as reiterated by Apex Court in Pepsi
Foods Ltd. & Anr. V. Special Judicial Magistrate & Ors. (1998) 5 SCC
749 are as under:-
"Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant has
to bring only two witnesses to support his allegations in
the complaint to have the criminal law set into motion.
The order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the
case and the law applicable thereto. He has to examine
the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to
succeed in bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. The Magistrate has to carefully scrutinize
the evidence brought on record and may even himself put
questions to the complainant and his witnesses to illicit
answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused."
Applying the afore-noted dictum of Apex Court in Pepsi Foods
(supra) to the facts of the instant case, I find that impugned order of 20 th
December, 2013 qua petitioners is unsustainable and is accordingly set
aside with direction to trial court to pass a fresh order on the feasibility of
Crl.M.C.Nos.953, 959, & 960 of 2014 Page 6
summoning petitioners as accused or not, in the light of the decision in
Shobhana Bhartia (supra) and while considering afore-referred decisions
as noticed hereinabove.
These three petitions are accordingly disposed of in the aforesaid
terms.
(SUNIL GAUR)
Judge
FEBRUARY 24, 2014
vn
Crl.M.C.Nos.953, 959, & 960 of 2014 Page 7
