Delhi High Court
R Sunder vs State Nct Of Delhi & Anr on 9 March, 2016
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 09th March, 2016
+ CRL.M.C. 1320/2013 & Crl.M.A.No.4118/2013
R SUNDER ..... Petitioner
Represented by: Mr.R.K.Handoo, Mr.Yoginder
Handoo, Mr.Aditya
Chaudhary, & Mr.Darpan
Sachdeva, Advs.
versus
STATE NCT OF DELHI & ANR. ..... Respondents
Represented by: Mr.Amit Ahlawat, APP for
the State/R1
Mr.Pramod Kumar Dubey,
Mr.Shiv Chopra, Ms.Megha,
& Mr.Siddharth Johar, Advs
for R2.
AND
+ CRL.M.C. 5124/2013 & Crl.M.A.No.18469/2013
DILEEP PADGAONKAR ..... Petitioner
Represented by: Mr.R.K.Handoo, Mr.Yoginder
Handoo, Mr.Aditya
Chaudhary, & Mr.Darpan
Sachdeva, Advs.
versus
STATE N.C.T. OF DELHI & ORS. ..... Respondents
Represented by: Mr.Satya Narain Vashisht,
APP for the State/R1.
Mr.Pramod Kumar Dubey,
Mr.Shiv Chopra, Ms.Megha,
& Mr.Siddharth Johar, Advs
for R2.
AND
+ CRL.M.C. 4183/2014 & Crl.M.A.No.14407/2014
ALOK MATHUR ..... Petitioner
Represented by: Mr.R.K.Handoo, Mr.Yoginder
Handoo, Mr.Aditya
Crl.M.C. Nos.1320/2013,5124/2013 & 4183/2014 Page 1 of 30
Chaudhary, & Mr.Darpan
Sachdeva, Advs.
versus
STATE OF NCT DELHI & ORS. .... Respondents
Represented by: Mr.Arun Kumar Sharma, APP
for the State/R1.
Mr.Pramod Kumar Dubey,
Mr.Shiv Chopra, Ms.Megha,
& Mr.Siddharth Johar, Advs
for R2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide these petitions filed under Section 482 of the Cr P C, petitioners
seek directions thereby quashing of the summoning order dated 26.06.2007
passed by learned Trial Court in Criminal Complaint Case No.343/1/2002.
Consequently, the aforenoted complaint case be also quashed against them.
2. Vide the impugned order learned Trial Court had issued the
summons to accused Nos.1 to 15 including the petitioners herein for the
offences punishable under Sections 499/500/501/502/34 of the IPC.
However, summons were not issued against 16th accused, i.e., Times News
Network.
3. Since the facts of all these three petitions are common and the same
are directed against summoning order dated 26.06.2007 arising out of a
complaint filed by respondent No.2, therefore, this Court has decided to
dispose of these petitions by a common judgment.
4. The allegations in narrow compass as contained in the complaint
filed before learned Trial Court against petitioners are that the respondent
No.2 had a long business relationship with accused No.1, i.e., M/s Bennett
Coleman & Company Limited and advertisements had been placed in
accused persons' newspaper for the last nearly 8 years. Until recently, the
complainant had been advertising heavily in the accused newspaper
intimating the general public about the timing of tests, the success rates of
its students etc. For the period 2000 to 2001, advertisements worth
Rs.1,01,49,143/- and for the period 2001-2002 advertisements worth
Rs.59,56,092/- had been placed in the accused newspaper. At the present
rate of advertisement tariffs in the accused persons newspaper it works out
to about Rs.2.15 Crores. The accused have, therefore, benefited
economically and financially in their association with the complainant. For
the calendar year commencing from 2002 the complainant had commenced
negotiations with the accused No.1 towards seeking a discount in the
advertisement rates, which is a normal practice in the trade of bulk booking
of advertisements in newspapers. The negotiations were held particularly
with Mr.R.Ricky, Mr.Daruman and Mr.Alok Mathur, the accused Nos.13
to 15 respectively from the marketing department. The complainant was
represented by one of its senior officers Mr.Annu Kundlu in such
negotiations. In this regard, the accused Nos.14 & 15 visited the office of
the complainant in January 2002 for such negotiations. At all times during
the negotiations it was impressed upon the complainant by the above
referred persons that as the complainant was a big advertiser, any final
decision relating to the tariffs for advertisement would only be taken by the
Chairperson and the Managing Director, accused Nos.2 & 5 respectively
and after consultations with accused Nos.3, 4 & 6 the top management of
the accused No.1. However, the discounts offered were far below the
normal industry standard and the complainant requested the accused
Nos.13 to 15 to reconsider their offer pertaining to the discounts in
advertising tariffs. Accordingly, the above referred accused persons
represented to the complainant that the top management of the accused
No.1 will have the final word as far as the case of the complainant was
concerned. Subsequently, the accused persons informed the complainant
that the high officials including accused Nos.2 to 6 in the management of
the accused No.1 had refused to relax the advertisement tariffs for the
complainant. Hence, the negotiations failed and the complainant stopped
advertising in the newspaper of the accused persons.
5. Mr.Handoo, learned counsel appearing for the petitioners submitted
that respondent No.2 instituted the above noted complaint case against 16
accused and vide the impugned order dated 26.06.2007, learned Trial Court
had issued summons against 15 accused out of total 16. Accused No.2
Ms.Indu Jain and accused No.5 Vineet Jain, the Chairperson and Managing
Director respectively, challenged the summoning order in
Crl.M.C.No.685/2008 and this Court vide decision dated 20.03.2012
quashed the summoning order and complaint against the duo.
6. While dismissing the complaint against afore noted two accused
persons, this Court observed and passed the order as under:-
"3. The impugned summoning orders are challenged by
the counsel for petitioners on the ground that in the
complaint, there is no act or omission attributed to the
petitioners and they are arrayed as parties merely
because of their being Chairman and Managing Director
of the Company and they have nothing to do with the
impugned publications and are not involved with the
making, printing or publishing the impugned news items.
Reliance is placed on Section 5 and 7 of the Press and
Registration of Books Act and the judgment of
K.M.Mathew Vs. State of Kerala, 1992 (1) SCC 217,
Shobhna Bhartia and Ors. Vs. NCT of Delhi and Ors.,
2008 (1) JCC 327 and K.Jagannatha Shetty and
Yogeshwar Dayal, AIR 1992 SC 2206.
xxxx xxxx xxxx
6. Section 5 of the Press and Registration of Books
Act stipulates that every Printer and publisher of a
newspaper shall make a statutory declaration before a
competent Magistrate in the prescribed form. Section 7 of
the Press and Registration of Books Act provides that
unless the contrary is proved, the persons declared as
Printer, publisher and Editor of the newspaper are
presumed to be responsible for the contents of the
newspaper. There is no doubt regarding the fact that the
article was defamatory in nature but the question before
this Court is that whether any person other than the
Printer, Publisher and Editor can be prosecuted for a
defamatory article or not.
7. In the case of Shobhana Bhartia (supra), while
deliberating on this issue, after discussing the judgments
in K.M. Mathew (supra), State of Maharashtra v. R.B.
Chowdhari and Sardar Nihal Singh v. Arjan Das, 1983
CrLJ 777, it was laid down that:
"58...(i)Besides persons declared as Editor, Printer
and publisher of a newspaper, only such person could
be prosecuted for an action of defamation against
whom specific and clear allegations has been made in
the complaint that either he was responsible for
selection of the defamatory matter or had personal
knowledge about the contents of the defamatory
matter. In addition, it must also be averred in the
complaint that such person had the intention to harm
or knowledge or reason to believe that the imputation
will harm the reputation of the complainant.
(ii) The Chairman or the Managing Director of the
company owning a newspaper is neither the Editor,
nor the Printer nor the publisher and therefore no
presumption could be drawn against holder of these
offices even though they are, by reason of the offices
held by them, in charge of, and responsible to, the
company for the conduct of its business".
8. Hence, it is settled legal proposition that in the
absence of specific averments in the complaint and
evidence to support those averments, nobody except the
Printer, publisher and Editor of the newspaper can be
presumed to be responsible for the contents of the
newspaper and cannot be prosecuted for the offence of
defamation. From the perusal of the complaint , it is
noticed that the complainant has relied on the fact of
refusal of providing discounts by the management to
support the allegation that the petitioners were involved
in the day to day management of the publication and were
responsible for taking the decisions in the said
publications. In my view, this fact alone is not sufficient to
support the allegations made by the complainant which
are prima facie vague and based on presumptions. The
averments in the complaint also do not make a case of
abetment or conspiracy.
9. There is nothing in the complaint to substantiate the
allegations of the complainant that the petitioners were
responsible for the publication of the said article in the
newspaper or had knowledge or consented to the
publication of objectionable article in the newspaper. A
Magistrate before whom a complaint is presented has to
satisfy himself that it contains the necessary averments.
The complaint would have to bring on record material to
justify the Court taking cognizance of the offence and
summoning the accused persons. Shedding light on the
criticality of summoning a person in a criminal case, the
Apex Court in Pepsi Foods Limited v. Special Judicial
Magistrate, (1998) 5 SCC 749 has held that:-
"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. Magistrate has to carefully scrutinise
the evidence brought on record and may even himself
put questions to the complainant and his witnesses to
elicit 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".
7. This Court thereafter vide order dated 18.10.2012 modified/ clarified
the judgment dated 20.03.2012 to the extent that instead of words 'there is
no doubt regarding the fact that the article was defamatory in nature', it was
to be read as 'There is no need to go into the controversy as to whether the
article is or not defamatory in nature, but the question before this Court is
that whether any person other than the Printer, Publisher and Editor can be
prosecuted for a defamatory article or not'.
8. Learned counsel for petitioner further submitted that the afore noted
judgment was passed by this Court mainly on the ground that petitioners
therein were neither Editor, nor Printer and publisher and the same ratio is
applicable in the present case. All three petitioners also do not come in any
of the categories mentioned above.
9. It is pertinent to mention here that in the complaint it is specifically
mentioned that accused Nos.2 to 5 were Chairperson, President, Director
and Managing Directors respectively of the company which owns, publish
and circulate the newspaper 'Times of India'. Thus, it is stated that
petitioner R Sunder (Crl M C No.1320/2013) is a Director and accused
Nos.7 to 9 are the Executive Editor, Editor and Printer respectively of the
Times of India, New Delhi edition. Accused No.10 is the Editor of the
Education Times, a weekly and carried out as supplement to the daily
newspaper-Times of India. Accused Nos.13 to 15 are the General Manager
- Marketing, Assistant Manager-Response, and Chief Manager-Response
respectively. He submitted that in the complaint, complainant has stated
that accused No.10 is the Editor, therefore, there was no question to
implead the other accused persons including the petitioners herein.
10. It is further stated in the complaint that subsequently when the
complainant stopped advertising in the newspaper of the accused persons,
they had chosen to publish the impugned article out of sheer malice and in
contradiction to their own stand in the article in question.
11. The article in question reads as under:-
"FIIT JEE uses questionable tactics to attract
students Coaching institute makes false
claims, IIT toppers 'pose' for FIIT
JEE ads, Education Times Finds out
Times News Network.
It is believable that of the total 3,600 students, clearing
the Indian Institute of Technology - Joint Entrance Exam
(IIT JEE) 2001, over 50 per cent - a whopping 1,860 -
took coaching classes from a single institution? That's the
claim of FIIT JEE for you. Year after year, the institute
has claimed an increased share of its students cracking
the IIT JEE - in 2000, it was 46.14 per cent or 1,493 of
the total 3,236 successful candidates. One wonders how
credible are these claims?
Interestingly, professors at IIT, Delhi are not ready to buy
this claim, saying that there is merely an eyewash. FIIT
JEE ends up listing as qualifiers an extra 50 per cent
students' who have already qualified in the examination
directly without the help of a coaching institute. IIT
students have some revealing details. IIT JEE 2000
topper, Nitin Gupta, whom FIIT JEE had included in its
list, had told this newspaper in a previous interview that
he was actually taking lessons from a coaching institute
in Kota. "I also subscribed to a few course materials
from FIIT JEE, Brilliant's and Apex and took FIIT JEE's
mock test." He had said. Is that enough reason for FIIT
JEE to lay full claim to this success?
A B Tech first year student at IIT-Delhi, Ankit Jain,
said "FIIT JEE's claims are hard to believe. The trend
suggests that students opt for modules and
correspondence tutorials from various institutes. That
doesn't give the right to any institute taking the credit for
a candidate's success. If at all, it must be in the institute
from where the student is enrolled for classroom contact
programme."
An IIT JEE 2001 ranker, currently pursuing B Tech
from IIT-Delhi said on condition of anonymity, "I was
surprised to see my name mentioned in the FIIT JEE list
as I'd done all my coaching from another institute. I had
just taken FIIT JEE's rankers test paper files. Their
claims are certainly misleading.
"Students referred to cases where coaching instituted
and particularly FIIT JEE, have approached rankers and
offered them money in the bargain of using their name
and photographs in FIITJEE's list of successful
candidates. An IIT professor on condition of anonymity
said, "I was shocked to see a 1996 JEE ranker's
photograph in a FIIT JEE advertisement. The student was
very bright and was from Jaipur and no way, could he
take classes from FIIT JEE. When asked, the student
admitted to having been approached and enticed by the
institute strictly told him that it was not a good practice.
"A B Tech final year student, Yogesh confirmed that
such practice exists. "The allegations are true". Another
student remarked, "The greed for publicity and the desire
to see one's photograph in the newspaper lure candidates
more than the money offered. Mandeep Singh, a M Tech
student, added, "Nobody refuses money in India".
"Another IIT-Delhi first year civil engineering student
on the condition of anonymity also claimed that FIIT JEE
paid high-ranking students who qualified in the IIT JEE
exam without ever attending a coaching institute to pose
for their advertisement by sending pictures or endorsing
falsely that they cleared the exam by attending FIIT JEE
coaching classes. This 'tactic' helped FIIT JEE to remain
the top-coaching institute in the country.
During the past few years, FIIT JEE has emerged as
the most sought-after coaching institute for students
interested in pursuing a career in engineering,
particularly to those who are interested in studying in any
one of the Indian Institute of Technology (IITs). FIIT JEE
has been able to claim year after year that it has been
able to send a maximum students to the IITs.
This is basically being done through media blitzkrieg,
which includes full-page advertisements in leading
newspapers, which mentions the list of candidates who
have cracked the IIT-JEE after undergoing a regular or
postal programme in FIIT JEE. Students who aspire to
study in IITs continue to get lured by these gimmicks to do
a regular or postal programme course for which the FIIT
JEE charges a hefty amount seen not anywhere in the
country.
While most students believe that a coaching institute's
claim should not be taken at face value, they however
reiterate that coaching is essential when it comes to crack
the IIT JEE. Ankit remarked, "Coaching is helpful as it
gives you guidance. However, 90 per cent of the effort has
to come from the students themselves." Agreed an IIT
professor, "Coaching may help to a certain extent, but it
alone cannot take you through, if you do not have the
potential."
"A third-year bio-tech, IIT-Delhi who did a one-year,
regular programme with FIIT JEE, Anjan Choudhury
(name changed) said : "The course content was not so
good. Actually, it is up to the individual student that how
he or she goes about preparing for the IIT-JEE". He
added, "The entrance test to get admission in FIIT JEE is
itself very tough to ensure the elimination of below par
students. FIIT JEE only admits those students who are
good enough to crack the IIT JEE. Moreover, the very
good ones are put into a separate batch during the
regular programme and given extra attention by the FIIT
JEE faculty. This is basically done to ensure that students
in the special batch are able to crack the IIT JEE.
"He said this was unfair to those students who paid
the same amount to get the same kind of attention from
the FIIT JEE faculty, but in actual fact where not getting
it."
This point of view was endorse4d by Shilpi Singh, a
third-year student of Mechanical Engineering at IIT-
Delhi who says, "I had undertaken one year coaching
programme at FIIT JEE." She felt that the approach of
FIIT JEE was commercialised. She says, "I feel that it is
commercialised and needs to be more personalised. They
should reduce the number of people they take in each
class. Moreover, she says, "On the basis of the entrance
test they conduct divide people in groups. The group
containing the brightest of the lot got best of the teachers,
whereas others got really bad professors. I think this is
highly unfair because all the students are paying the same
amount of fees and should be given the same kind of
treatment, which was not there."
Ankur Garg, a final - year student of Electronics and
Electrical Engineering , IIT-Delhi says, "I had enrolled
for the inte4nsive-contact programme of FIIT JEE,
spanning one month. But I dropped out of it merely after
10 days because it was not upto mark. I felt that in the six
hours of classes, I was attending everyday I was getting
an output of only two hours. I felt that I could do better by
preparing myself".
A student who is pursuing a Ph D in nuclear physics
and had done a one-year regular programme with FIIT
JEE Deepkumar Shaw (name changed), said: "FIIT JEE
continues to claim that its success rate is far better than
any other coaching institute in the country but the fact is
that students crack IIT-JEE because of their good
academic background and sheer hard work." He added,
"How could the FIIT JEE claim that a particular student
cracked IIT-JEE because of them? The truth is that only
those students crack the IIT-JEE who have a good
academic record throughout their career."
12. In the summoning order dated 26.06.2007, learned Trial Court had
specifically recorded that CW2 Col.K.C. Oberoi (Retd) AR of the
complainant stated in his examination that accused Nos.1 to 16 had hatched
a conspiracy to malign the complainant company as the company had
stopped advertising in the newspaper of accused. Accused No.2 is the
Chairperson of accused No.1 Company and accused Nos.3 to 4 are the
President and Director respectively of the accused company. Accused
Nos.5 & 6, Managing Director and Executive Managing Editor respectively
are responsible for the routine business affairs of the accused company.
Further, stated that accused Nos.14 and 15, the General Manager Marketing
and Assistant Manager Response in the company were involved in the
direct negotiations with the complainant for advertisement orders for the
complainant company.
13. In view of above, learned counsel for respondent No.2/complainant
argued before learned Trial Court that the article in question, that too of
such a nature, cannot be published without the involvement of the top
management of the company and all the accused persons were involved and
defamed the complainant company and also tarnished the image and
reputation of the company by publishing the articles Ex.CW2/1 &
Ex.CW2/2 in their newspaper.
14. Learned counsel for petitioners submitted that complainant made
allegations against all 16 accused persons, whereas learned Trial Court had
not issued summons against last, i.e., 16th accused and against accused
Nos.2 & 5, summoning order as well as complaint has already been
quashed by this Court, as noted above.
15. He further submitted that respondent No.2/complainant has
specifically averred that accused No.10 is the Editor, who is liable under
Section 1 of the Press Registration of Books Act, 1867 (hereinafter referred
as 'the Act'). Therefore, the petitioners cannot be held liable for the
publication in question.
16. Learned counsel further submitted that petitioners have played no
role for the publication of articles and on same ratio, this Court vide order
dated 20.03.2012 specifically opined that complaint lacks any specific
allegations against the petitioners for the publication in question,
accordingly the complaint and the summoning orders qua the petitioners
were quashed by this Court under Section 482 of the Cr P C.
17. Learned counsel also urged that complaint against accused Nos.6 &
15 was dismissed in default and thereafter, on filing of the Revision
Petition by the respondent No.2, the dismissal order has been recalled
without issuance of notice by learned Revisional Court and accused No.1
company was also not made a party in said revision proceedings.
Therefore, said order is bad in law.
18. To support his arguments, learned counsel for petitioner has relied
upon the decision of the Supreme Court K M Mathew v. State of Kerala &
Anr: (1992) 1 SCC 217. The relevant portion reads as under:-
"9. In the instant case there is no averment against the
Chief Editor except the motive attributed to him. Even the
motive alleged is general and vague. The complainant
seems to rely upon the presumption under Section 7 of the
Press and Registration of Books Act, 1867 ('the Act'). But
Section 7 of the Act has no applicability for a person who
is simply named as 'Chief Editor'. The presumption under
Section 7 is only against the person whose name is
printed as 'Editor' as required under Section 5(1). There
is a mandatory (though rebuttable) presumption that the
person whose name is printed as 'Editor' is the Editor of
every portion of that issue of the newspaper of which a
copy is produced. Section 1(1) of the Act defines 'Editor'
to mean 'the person who controls the selection of the
matter that is published in a newspaper'. Section 7 raises
the presumption in respect of a person who is named as
the Editor and printed as such on every copy of the
newspaper. The Act does not recognise any other legal
entity for raising the presumption. Even if the name of the
Chief Editor is printed in the newspaper there is no
presumption against him under Section 7 of the Act.
10. It is important to state that for a Magistrate to take
cognizance of the offence as against the Chief Editor,
there must be positive averments in the complaint of
knowledge of the objectionable character of the matter.
The complaint in the instant case does not contain any
such allegation. In the absence of such allegation, the
Magistrate was justified in directing that the complaint so
far as it relates to the Chief Editor could not be
proceeded with. To ask the Chief Editor to undergo the
trial of the case merely on the ground of the issue of
process would be oppressive. No person should be tried
without a prima facie case. The view taken by the High
Court is untenable. The appeal is accordingly allowed.
The order of the High Court is set aside."
19. Also relied upon the decision of the Supreme Court in Indrajit
Lankesh v. K.T.Dhanu Kumar : 2015 (3) RCR (Crl) 141 wherein it was
held by the Apex Court as under:-
"2. To state the facts in brief:
The Respondent has filed a criminal complaint
Under Section 500 of the Indian Penal Code alleging
that there is an office of criminal defamation
committed by certain persons inasmuch as in the
publication titled "Lankesh Patrike" dated 25.12.2008,
a defamatory article is published against the
complainant. The complainant has arrayed the Editor
etc. of the publication as accused persons. In addition,
the Appellant has also been implicated the accused
No. 2 on the ground that he is the proprietor of the
said publication "Lankesh Patrike".
3. The submission of the Appellant in the High Court was
that by virtue of Section 7 of the Press and Registration
of Books Act, 1867 (for short 'the Act'), protection is
afforded to the proprietor of the publication and,
therefore, he could not have been implicated in the said
complaint. Section 7 reads as under:
"In any legal proceeding whatever, as well civil as
criminal, the production of a copy of such declaration
as is aforesaid, attested by the seal of some court
empowered by this Act to have the custody of such
declarations, or, in the case of the Editor, a copy of the
newspaper containing his name printed on it as that of
the Editor shall be held (unless the contrary be
proved) to be sufficient evidence, as against the person
whose name shall be subscribed to such declaration,
or printed on such newspaper as the case may be, that
the said person was Printer or publisher, or Printer
and publisher (according to the words of the said
declaration may be) of every portion of every
newspaper whereof the title shall correspond with the
title of the newspaper mentioned in the declaration or
the Editor of every portion of that issue of the
newspaper of which a copy is produced".
As is clear from a reading of the aforesaid
provision, in order to avail the protection under the
aforesaid provision, a declaration in the prescribed
format has to be filed. The High Court dismissed the
petition of the Appellant with the observation that the
declaration filed did not disclose the name of the
owner.
4. It is pointed out by Mr. Sharan Thakur, learned
Counsel appearing for the Appellant that the High Court
has committed an error in not reading the declaration
properly. He argued that the declaration Under Section
5 of the said Act was made before the Sub-Divisional
Magistrate, Bangalore by one Shri Siddappa Arakere as
regards the change of the Printer, publisher and Editor
the said magazine "Lankesh Patrike". In terms of the said
declaration, Shri Siddappa Arakere was described as the
publisher and Printer as well as Editor of the said
magazine. To substantiate this submission, the said
declaration by Mr. Siddappa Arakere, as filed, is
produced as Annexure-P-1. From a reading of this
declaration, we find merit in the contention raised by the
Appellant.
5. Notice of these proceedings has been duly served
upon the Respondent-complainant. However, nobody has
put in appearance on his behalf. In the absence of any
rebuttal, there is no reason to disbelieve the declaration
which is produced by the Appellant. We thus find that the
Appellant satisfies the conditions contained in Section
7 of the Act and, therefore, he cannot be made accused in
the complaint Under Section 500 of the Indian Penal
Code filed by the Respondent. We thus allow this appeal
and quash the proceedings qua the Appellant in
Complaint Case No. 3/09."
20. On the other hand, learned counsel for respondent No.2/ complainant
submitted that accused No.1 company had not published who was the
Editor of the company and had not placed on record any document before
learned Magistrate to this effect. Therefore, they cannot take the stand that
accused No.10, being Editor was only responsible for the publication.
Moreover, the petitioners have placed on record the document Annexure
RP-1/certificate wherein Mr. R Sunder (petitioner in Crl. M. C.
No.1320/2013) is certified to be Director being the employee of the
accused No.1 company. It shows that said petitioner was responsible for
the article published in the newspaper.
21. Moreover, CW2 Col. K.C.Oberoi during evidence deposed as
under:-
"... Accused No.3 is Mr.Pradeep Guha. Accused No.4
Mr.R.Sunder who are President and Director respectively
of accused No.1 company. Accused No.5 is Mr.Nitin Jain
who is Managing Director and Accused No.6 is
Mr.Dileep Padgaonkar who is the Executive Managing
Editor of the Accused Company. The accused No.2 to 6
are responsible for routine business affairs of the accused
company. ..... Mr.Annu Kundlu had apprised the
Managing Director of the complainant company about
the development and negotiations with accused company
in my presence. Mr.Annu Kundlu had mentioned that
accused Nos.13, 14, 15 had categorically told him that
accused No.2 to 6 has given them a definite instruction
not to offer rebate. Therefore, this defamatory articles
were published by the accused persons."
22. Further submitted that in the requisite declaration in the print line of
concerned newspaper of accused No.1 it is specifically mentioned as
under:-
"..... Editor (Delhi Market) Umesh Anand responsible for
selection of News under PRB Act Executive Editor
Shekher Bhatia, Executive Managing Editor Dileep
Padgaonkar @ all rights reserved. Reproduction in
whole or in part with written permission of the publisher
is prohibited. Postal Registration No.TN/Chief PMG
399/2002."
23. Learned counsel submitted that petitioner Dileep Padgaonkar
(Crl.M.C. No.5124/2013) & accused No.6 was Executive Managing Editor,
thus he was responsible for the publication in newspaper. Accordingly, all
the three petitioners are responsible for the publication.
24. He further submitted that only summons were issued and learned
Trial Court has to frame the notice under Section 251 of the Cr P C.
Therefore, petitioners are at liberty to raise all the pleas as urged in this
petition, before learned Trial Court at the time of such notice. Thus, the
petition is pre-mature.
25. To buttress his arguments, learned counsel for respondent No.2 has
relied upon the decision rendered by Coordinate Bench of this Court in
Rajdeep Sardesai & Ors v. State GNCT of Delhi, Crl.M.C.No.1728/2012
on 12.12.2013. The relevant portion reads as under:-
"After hearing both the sides and on perusal of the
complaints in question, impugned orders, the material
on record and the decisions cited, I find that the
question of sting operation being defamatory or not,
is not subjudice in proceedings pending relating to
Lokayukta's report of 22nd March, 2012 (Annexure
P-3) in Crl. M.C.2398/12. In aforesaid Lokayukta's
report, it has been clarified that if there is any
grievance regarding complainants herein being
defamed by the telecast, them they can avail of
remedy available in law. The aspect of advisory being
issued to respondent -Ajit Singh Tokas and
complainant-respondent-Ravi Prakash Sharma being
reprimanded by the Lokayukta, cannot be made the
basis to quash the complaints in question because the
recommendation of Lokayukta to the Lieutenant
Governor of Delhi has not been accepted.In any case,
this is an aspect ought to be dealt with at the
appropriate stage of trial.
Veracity or truthfulness of the sting operation
cannot be pre-judged in proceedings under Section
482 of Cr.P.C. and is required to be established at
trial as it is open to petitioners to show before trial
court that they fall in any of the exceptions to Section
499 of IPC. Such a view is being prima facie taken
because petitioners themselves have described
themselves to be TV-18 (Broadcast Ltd.) formerly
known as M/s.IBN-18 Broadcast Ltd and because
petitioners have not disclosed as to who was the
person, who had permitted the telecast of the sting
operation, which is alleged to be defamatory.
However, during the course of hearing, it had become
abundantly clear and is beyond any dispute that
petitioner No.3Kshipra Jatana, EVP and Head Legal
of TV18 Broadcast Ltd., has nothing to do with the
offence in question, therefore, continuance of
proceedings against her is unwarranted and the
proceedings arising out of criminal complaint No.7/1
qua her are quashed. Regarding remaining
petitioners, proceedings arising out of complaint in
question qua them do not deserve to be quashed as
respondent - complainant ought to be provided an
opportunity to get the averments made in these
complaints tested at trial. It is so said in view of the
dictum of Apex Court in Jeffrey J. Diermeier (supra),
which is as under:-
"37. It is trite that where to the charge of
defamation under Section 500 IPC the accused
invokes the aid of Tenth Exception to Section 499
IPC, "good faith" and public good" have both to
be established by him. The mere plea that the
accused believed that what he had stated was in
"good faith" is not sufficient to accept his defence
and he must justify the same by adducing
evidence. However, he is not required to discharge
that burden by leading evidence to prove his case
beyond a reasonable doubt.
38. It is well settled that the degree and the
character of proof which an accused is expected to
furnish in support of his plea cannot be equated
with the degree of proof expected from the
prosecution in a criminal trial. The moment the
accused succeeds in proving a preponderance of
probability, onus which lies on him in this behalf
stands discharged. Therefore, it is neither feasible
nor possible to lay down a rigid test for deciding
whether an accused person acted in "good faith"
and for "public good" under the said Exception.
39. The question has to be considered on the facts
and circumstances of each case, having regard to
the nature of imputation made; the circumstances
on which it came to be made and the status of the
person who makes the imputation as also the status
of the person against whom the imputation is
allegedly made. These and a host of other
considerations would be relevant and required to
be considered for deciding the appellants' plea of
"good faith" and "public interest". Unfortunately,
all these are questions of fact and matters for
evidence.
40. In the instant case, the stage for recording of
evidence had not been reached and, therefore, in
the absence of any evidence on record, we find it
difficult to return a finding whether or not the
appellants have satisfied the requirements of
"good faith" and "public good" so as to fall
within the ambit of the Tenth Exception to Section
499 IPC. Similarly, it will neither be possible nor
appropriate for this Court to comment on the
allegations levelled by Respondent 2 and record a
final opinion whether these allegations do
constitute defamation. Reading the complaint as a
whole, we find it difficult to hold that a case for
quashing of the complaint under Section 482 of the
Code has been made out. At this juncture, we say
no more lest it may cause prejudice to either of the
parties."
26. Also relied upon the decision of this Court in Rakesh Sharma & Ors
v. Mahavir Singhvi:2008 (3) JCC 1656. The relevant portion reads as
under:-
"14. On a perusal of the two complaints, this Court is
unable to come to the conclusion that not even a prima
facie case is made out against the Petitioners for the
offence under section 500 IPC. The question is really
whether at this stage, without the case going to trial, the
defence of the Petitioners with reference to the exceptions
under section 499 IPC can be adjudicated upon. The
learned ACMM has perused the pre-summoning evidence
of the complainant and come to the conclusion that a
prima facie case has indeed been made out. To this Court,
there appears to be no perversity vitiating this conclusion.
The veracity of the statements made by these witnesses
can be at best be tested during the trial through their
cross-examination."
27. On the identical issue, learned counsel relied upon the decision of the
Supreme Court in Shatrughna Prasad Sinha v Rajbhau Surajmal Rathi
& Ors : 1996 SCC (Crl) 1310. The relevant portion reads as under:-
"13. As regards the allegations made against the
appellant in the complaint filed in the Court of
Judicial Magistrate, Ist Class, at Nasik, on a reading
of the complaint we do not think that we will be
justified at this state to quash that complaint. It is not
the province of this Court to appreciate at this stage
the evidence or scope of and meaning of the
statement. Certain allegations came to be made but
whether these allegations do constitute defamation of
the Marwari community as a business class and
whether the appellant had intention to cite as an
instance of general feeling among the community and
whether the context in which the said statement came
to be made, as is sought to be argued by the learned
senior counsel for the appellant, are all matters to be
considered by the learned Magistrate at a later stage.
At this stage, we cannot embark upon weighing the
evidence and come to any conclusion to hold, whether
or not the allegations made in the complaint
constitute an offence punishable under Section 500. It
is the settled legal position that a Court has to read
the complaint as a whole and find out whether
allegations disclosed constitute an offence under
Section 499 triable by the Magistrate. The Magistrate
prima facie came to the conclusion that the
allegations might come within the definition of
'defamation' under Section 499 IPC and could be
taken cognizance of. But these are the facts to be
established at the trial. The case set up by the
appellant are either defences open to be taken or
other steps of framing a charge at the trial at
whatever stage known to law. Prima facie we think
that at this state it is not a case warranting quashing
of the complaint filed in the Court of Judicial
Magistrate, Ist Class at Nasik. To that extent, the
High Court was right in refusing to quash the
complaint under Section 500 IPC."
28. On the issue of revision in without arraying of accused No.1
company therein and absence of any notice, learned counsel for respondent
No.2/ complainant has further relied upon the decision rendered by this
Court in Rajesh Dubey v. State & Ors : WP (Crl) No.533/2012 decided on
13.09.2013. The relevant portion reads as under:-
"13. Whenever a revision is filed either before the
Sessions Court or this Court, it is not necessary to give
notice to accused for affording him an opportunity of
being heard, irrespective of the fact whether the order is
prejudicial to him or not. For example, when a complaint
is dismissed in default and for non-prosecution due to non
appearance of complainant and not taking any steps by
filing process fee etc. u/s 204(4), in that eventuality,
Section 401(2) would not be applicable and no notice is
required to be issued as the order dismissing the
complaint for default or non-prosecution does not touch
upon the factual or legal merits of the complaint. The said
order is a reflection on or about the conduct of the
complainant in the proceeding before the Court and the
opinion formed by the Court about the said conduct. Such
order, if they do not reflect and take into consideration
the merits of the case, when challenged in revision, does
not require notice to opposite side as held in J.K.
International vs. State, 96(2002) DLT 795 and reiterated
in Hindustan Domestic Oil & Gas Co.(Bombay) Ltd &
Ors. vs. State & Anr., 2012(4) JCC 2310."
29. I have heard learned counsels for parties.
30. Learned counsel for petitioners has argued on two counts. First plea
taken by him is that the petitioners are neither Printers, nor publisher nor
Editor of the company. If all the three aspects are missing in the complaint,
then the summons issued, is/are illegal. On the aforesaid issue, learned
counsel for petitioners relied upon the case of K M Mathew, Mrs.
Shobhana Bhartia, and R.B. Chowdhari (supra) etc. On the second
issue, learned counsel for petitioners submitted that the complaint filed by
the respondent No.2 was dismissed in default and thereafter on being filing
Criminal Revision, the same was restored to its original number without
issuing notice to the petitioners.
31. As far as first issue is concerned, it is true that as per the cases relied
upon by petitioners for publication there must be a person involved with
the making, printing or publishing as per the requirements of Sections 5 &
7 of the Act, but the fact remains that the petitioners have failed to produce
any statutory declaration before learned Trial Court in the prescribed
format. As per Section 7 of the Act, unless the contrary is proved, the
persons declared as Printer, Publisher and Editor of the newspaper are
presumed to be responsible for the contents of the newspaper or
publication. Learned counsel for petitioners has not argued on the issue
whether the article was defamatory or not. He tried to establish that there
are no allegations against the petitioners and they do not come under
Sections 5 & 7 of the Act. As per Section 5 of the Act, the Printer and
Publisher of newspaper shall make a statutory declaration before a
competent Magistrate in the prescribed form and Section 7 of the Act
provides that unless the contrary is proved, the persons declared as Printer,
Publisher and Editor of the newspaper are presumed to be responsible for
the contents of the newspaper. As argued by learned counsel for
respondent No.2, the petitioners have not declared as to who were the
Printer and Publisher, therefore, the complaint was filed against as many as
16 accused persons, however learned Trial Court had summoned only
accused Nos.1 to 15 and not summoned the last 16th accused.
32. The law is well settled that 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 accused must reflect that
the Court has applied its mind to the facts of the case and the law
applicable. It has to examine the nature of the allegations made in the
complaint and the evidence both oral and documentary in support thereof.
The Magistrate has to carefully scrutinise the evidence brought on record
and may even himself put questions to the complainant and his witnesses,
elicit answers to find out truthfulness of the allegations.
33. The allegations against the petitioners in the case in hand are that
respondent No.2 had a long business relationship with accused No.1, i.e.,
M/s Bennett Coleman & Company Limited and advertisements had been
placed in accused persons' newspaper for the long time. However, discount
offers were far below than the normal industry standards accordingly,
respondent No.2 requested the accused Nos.13 to 15 to reconsider their
discount offers in advertisement tariffs. Accordingly, the above referred
accused persons represented to the complainant that top management of
accused No.1 will have the final word as far as case of respondent No.2
was concerned. Subsequently, the accused persons informed the
respondent No.2 that high official including accused Nos.2 to 6 in the
management of accused No.1 had refused to relax the advertisement tariffs
for respondent No.2. Hence, the negotiations failed and the respondent
No.2 stopped giving advertisements in the newspaper of the accused
persons. Therefore, accused persons published the article in question,
whereby has allegedly defamed respondent No.2. Thus, all the accused
persons are responsible for the offence committed including the petitioners.
34. To strengthen the case before learned Trial Court, respondent No.2
examined CW2 Col. K.C. Oberoi (Retd), AR of complainant, who stated in
examination that accused Nos.1 to 16 had hatched a conspiracy to malign
the respondent No.2 as the company had stopped advertising in the
newspaper of accused No.1. Accused No.2 is the Chairman of accused
No.1 and accused Nos.3 and 4 are the President and Director respectively.
Accused No.5 and accused No.6, Managing Director and Executive
Managing Editor respectively were responsible for the routine business
affairs of accused No.1 company.
35. As stated by learned counsel for respondent No.2, accused No.10
was Editor and was only responsible for the publication. But, the
petitioners have failed to produce any document before learned Trial Court
whereby Printer, Publisher and Editor have been declared in proper format.
In such a situation, learned Trial Court had to see the complaint and
evidence relied upon and thereafter, issued the summons in the case. In the
present case, since the declaration of the Printer, Publisher and Editor was
not there, therefore, it was very difficult to ascertain as to who were the
persons responsible.
36. It is not in dispute that the summoning order against the accused
Nos.2 & 5, Chairperson and Managing Director respectively, has been
quashed by this Court in Crl. M. C. No.685/2008 vide order dated
20.03.2012 by observing that Chairman and Managing Director, being
overall in-charge of the media, cannot be held guilty for the defamation for
the reason they were not involved with the making, printing or publishing.
Whereas in the present case, as per the allegations, the petitioners were
doing the business of accused No.1 company and respondent No.2 was
giving lot of work for advertisement and when they stopped, accused
persons got defamatory articles published against respondent No.2 in their
newspaper.
37. It is categorically averred in the complaint that petitioner R Sunder is
Director-Response and accused Nos.7 to 9 are the Executive Editor, Editor
and Printer respectively of the Times of India, New Delhi Edition. Accused
No.10 is the Editor- Education Times, published weekly and carried out as
supplement to the daily newspaper-Times of India. Accused Nos.13 to 15
are the General Manager-Marketing, Assistant Manager-Response, and
Chief Manager-Response respectively. Thus, they are all responsible for
the offences committed by them.
38. Moreover, CW2 Col. K.C.Oberoi (Retd) deposed that accused No.2
R Sunder was the Director of accused No.1 company. Accused No.6
Mr.Dileep Padgaonkar was the Executive Managing Editor of accused
company. Accused Nos.2 to 6 are responsible for the routine business and
affairs of accused company. Moreover, in the declaration it is specifically
stated that Editor (Delhi Market) Umesh Anand responsible for selection of
News under PRB Act and Executive Editor Shekher Bhatia, the Executive
managing Editor Dileep Padgaonkar (in Crl.M.C.No.5124/2013), are
responsible for publishing. Therefore, I find no substance in the contentions
of learned counsel for petitioners that the petitioners were not liable for the
publication of article in question.
39. As per the settled law veracity or truthfulness of the complaint and
evidence relied upon cannot be pre-judged in the proceedings under Section
482 Cr P C and is required to be established at trial as it is open to
petitioners to show before learned Trial Court that they fall in any of the
exceptions to Section 499 of the IPC. The veracity of the statements made
by the witnesses can only be tested during trial through their cross-
examination. On reading of the complaint and evidence led by the
respondent No.2, there is no justification to quash the summoning order
and proceedings arising therefrom against petitioners.
40. It is also settled legal proposition that the Court has to read the
complaint as a whole and find out the allegations disclosed therein
constitute the offence under Section 499 of the IPC. The Magistrate prima
facie came to the conclusion that allegations might come within the ambit
of defamation under Section 499 of the IPC and could be taken cognizance
thereof, but these facts are to be established during trial only.
41. On the issue of revision being filed by respondent No.2 and same
was allowed even without issuing notice to petitioners, it is held in Rajesh
Dubey (supra) that whenever a revision is filed either before the Sessions
Court or this Court, it is not necessary to give notice to accused for
affording an opportunity of being heard irrespective of the fact that whether
the order is prejudicial to him or not. When a complaint is dismissed in
default for non-prosecution, as the case in hand, the issue of non-
appearance of the complainant and not taking any steps by filing of process
fee etc under Section 204(4) of the Cr P C, in that eventuality, provisions of
Section 401(2) of the Cr P C would not be applicable and no notice is
required to be issued, as order of dismissal of complaint either in default or
for non-prosecution does not touch upon the factual or legal merits of the
complaint. The said order is reflective on or about the conduct of the
complainant in the proceedings before the Court and the opinion formed by
the Court about the said conduct.
42. Moreover, the present petition is against the summoning order and
notice under Section 251 Cr P C is yet to be framed against petitioners.
Admittedly, there is no scope for discharge by learned Metropolitan
Magistrate in a summons case. The Coordinate Bench of this Court in
Arvind Kejriwal & Ors v Amit Sibal & Anr : 212 (2014) DLT 489, while
deliberating on identical issue sent the copy of said judgment to all District
& Sessions Judge and observed as under:-
"19. .... the accused are entitled to hearing before the
learned Metropolitan Magistrate at the stage of
framing of notice under Section 251 Cr.P.C. in all
summons cases arising out of complaints and the
Magistrate has to frame the notice under Section 251
Cr.P.C. only upon satisfaction that a prima facie case
is made out against the accused. However, in the
event of the learned Magistrate not finding a prima
facie case against the accused, the Magistrate shall
discharge/drop the proceedings against the accused.
Since there is no express provision or prohibition in
this regard in the Code of Criminal Procedure, these
directions are being issued in exercise of power under
Section 482 read with Section 483 Cr.P.C. and Article
227 of the Constitution to secure the ends of justice;
to avoid needless multiplicity of procedures,
unnecessary delay in trial/protraction of proceedings;
to keep the path of justice clear of obstructions and to
give effect to the principles.....
20. Applying the aforesaid principles to this case, the
petitioners are permitted to urge the pleas raised in
this petition before the learned Metropolitan
Magistrate at the stage of framing of notice under
Section 251 Cr.P.C. whereupon the learned
Metropolitan Magistrate shall consider them and pass
a speaking order. The learned Magistrate shall frame
the notice under Section 251 Cr.P.C. only upon
satisfaction that a prima facie case is made out
against the petitioners. The learned Magistrate shall
be empowered to discharge/drop the proceedings
against the petitioners if no case is made out against
them. Needless to say, if the learned Magistrate
chooses to frame notice under Section 251 Cr.P.C.,
the petitioners would be at liberty to avail the
remedies as available in law."
43. In view of above settled position of law, learned Metropolitan
Magistrate shall be empowered to proceed with in these matters in lines of
above directions as mirrored in Arvind Kejriwal's case (supra).
44. Accordingly, the petitions are disposed of with no order as to cost.
Crl.M.A.No.4118/2013 in CRL.M.C. 1320/2013;
Crl.M.A.No.18469/2013 in CRL.M.C. 5124/2013; and
Crl.M.A.No.14407/2014 in CRL.M.C. 4183/2014
Dismissed as infructuous.
SURESH KAIT
(JUDGE)
MARCH 09, 2016
M /jg
