Delhi High Court
Madanjit Kumar vs J P Singh & Ors. on 23 January, 2019
SHAKUN ANAND
04.02.2019 11:30
$~7
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd January, 2019
+ CRL.M.C. 76/2018 and Crl.M.A. 331/2018
MADANJIT KUMAR ..... Petitioner
Through: Mr. Alok Tripathi, Advocate
versus
J P SINGH & ORS. ..... Respondents
Through: Mr. H.S. Phoolka, Senior Advocate
with Mr. Kunal Sharma, & Ms. Shilpa
Dewan, Advocates
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner was employed in Central Electronic Limited
(CEL, the fourth respondent) on 10.12.1993 as Senior Technical
Assistant. Over the period of his service in the said organization, he
came to be promoted initially to the post of Manager (Public
Relations) and later to the position of Senior Manager (Public
Relations). It is his case that on account of certain efforts made by him
to approach the Chairman-cum-Managing Director (CMD) in the
context of some open letter that had been circulated, in his perception
it not being in the interest of the company, the CMD had started to
nurse personal grudge which resulted in his transfer from Sahibabad
(U.P.) to Bangalore office. It is his case that on account of domestic
compulsions he was constrained to make certain requests for return
transfer from Bangalore but his endeavor did not bear any fruit. He
alleges that against this backdrop, on 08.06.2012, he was served with a
charge sheet under the cover of "an open letter", the documents and
backgrounds whereof were explained only after he had approached
this court in writ jurisdiction, the charges brought against him being to
the effect of he having engaged in pornography, flesh trade, etc.
through the internet. It is his case that he filed first information report
(FIR) No.416/2012 alleging offences under Section 66 (a) of the
Information Technology Act, 2000 having been committed by
someone, the subject matter being the content of the material on the
website on the basis of which he was facing disciplinary action. The
FIR, it is his own case, did not result in any prosecution as the police
filed a closure report, the matter in that regard having attained finality,
the petitioner not having pursued it further.
2. The departmental charge sheet dated 08.06.2012 for disciplinary
action concededly resulted in report dated 04.01.2014 of the inquiry
officer that led to penalty of "censure" being imposed against him, his
appeal there against having been later allowed and he being
exonerated, all service benefits having been restored by order dated
07.08.2014.
3. After the said conclusion of the disciplinary action in which the
private party respondents herein are stated to have participated by
some role or the other, the petitioner filed the criminal complaint (CC
No.9191/1/2014) alleging that by the abovementioned acts of
commission and omission concerning the disciplinary proceedings
initiated against him through the letter dated 08.06.2012, he had been
defamed, the offence punishable under Section 500 of Indian Penal
Code, 1860 (IPC) having been committed.
4. The Metropolitan Magistrate took cognizance and held pre-
summoning inquiry. Concededly, in the said inquiry, the petitioner
examined himself as the solitary witness (CW-1) to affirm on oath the
above mentioned facts. The Metropolitan Magistrate, by order dated
01.06.2017, found no grounds to proceed further, holding that no
sufficient material had been adduced to summon the respondent as
accused and, thus, dismissed the complaint under Section 203 of the
Code of Criminal Procedure, 1973 (Cr.P.C.).
5. The petitioner challenged the above mentioned conclusion of
the Metropolitan Magistrate in the court of sessions invoking its
revisional jurisdiction by Criminal Revision Petition No.25/2017
which was dismissed by the said court, by judgment dated 09.10.2017,
upholding the view taken by the Metropolitan Magistrate.
6. Aggrieved by the two above said consistent orders of the courts
below, the present petition has been filed invoking inherent power and
jurisdiction of this court under Article 227 of the Constitution of India
read with Section 482 Cr.P.C., the contentions being that the evidence
adduced by the petitioner has been glossed over and that a proper case
had been made out to show the respondents having committed the
offence of defamation punishable under Section 500 IPC for which
they ought to have been summoned. Reliance is placed on judgment
of a learned Single Judge of this court in Arundhati Sapru vs. Yash
Mehra, Crl.M.C.581/2013, decided on 12.11.2013.
7. Having heard the learned counsel and having gone through the
record, this court finds that the present matter raises questions of law
identical to those which had come up for scrutiny in S.T.P. Singh vs.
Tarsem Singh & Ors., Crl.M.C. 4514/2015, decided on 03.07.2018
[2018 SCC Online Del 9978] .
8. The offence of defamation is defined by the provision contained
in Section 499 IPC which, to the extent necessary, may be quoted as
under :-
"499. Defamation.--Whoever, by words either spoken or
intended to be read, or by signs or by visible
representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm,
the reputation of such person, is said, except in the cases
hereinafter excepted, to defame that person.
xxx
Explanation 4 - No imputation is said to harm a person‟s
reputation, unless that imputation directly or indirectly, in
the estimation of others, lowers the moral or intellectual
character of that person, or lowers the character of that
person in respect of his caste or of his calling, or lowers
the credit of that person, or causes it to be believed that
the body of that person is in a loathsome state, or in a state
generally considered as disgraceful.
xxx""
(emphasis supplied)
9. The core issue that arises is as to whether any evidence has been
led to show the imputation to have been "published" within the
mischief of Section 499 IPC. In this context, the relevant law, as
noted by this court, in S.T.P. Singh (supra) may be quoted with
advantage, it reading as under:-
"9. It is clear from a bare reading of the above
extracted provision that it is not only essential that the
impugned imputation harming the reputation of the
person in question must be alleged to have been "made"
or "published" but also that it must be shown, amongst
others, to have directly or indirectly, inter alia, lowered
the moral or intellectual character of the said person "in
the estimation of others".
10. The petitioner places reliance on the view taken by
a learned single Judge of this court in Sanjay Mishra Vs.
Govt. of NCT of Delhi and Anr. in Crl. M.C. 3350/2008,
decided on 23.03.2012 where in the context of criminal
complaint under Section 500 IPC, it was observed that
"publication" has a meaning wider in the context of
criminal action in contrast to the civil law and would
include "a communication to the person defamed alone"
and that "the prosecution for defamation in criminal
cases can be brought although the only publication is to
the person defamed as it is very likely to provoke a
breach between the persons involved".
11. With due deference, this court finds the above view
expressed by the learned single Judge in the case cited at
bar to be per incuriam. The principle that the offence of
defamation is committed only when there is a
communication to a third party is well settled. [See
Abdul Aziz vs. Maulana Syed Muhammad Arab Saheb,
AIR 1935 Cal 736 : 159 IC 727: 37 Cr LJ 133; Khima
Nand and Anr. vs. Emperor, 1937 ALJ 128 : 169 IC 622 :
38 Crl. LJ 806; Sohanlal Daga vs. Sreechand Daga, AIR
1941 Cal. 247; Kundamal vs. Emperor, AIR 1943 Sind
196 : 45 Cr LJ 105 : 209 IC 234; Lachhman vs.
Pyarchand, AIR 1956 Raj 169 : 1959 Raj LW 222; Amar
Singh vs. K.S. Badalia, (1965) 2 Cr. LJ 693; Challa
Subarayalu v. Darbha Ramakrishna Rao, (1968) 2 And
LT 101].
12. The key words in the main clause wherein the
offence of defamation is defined by Section 499 IPC are
"makes or publishes" the "imputation" encompassing
insinuation with the propensity "to harm" the
"reputation" of the person against whom the same is
directed. For the present discussion, the said clause has
to be read in light of the explanations appended thereto
particularly the fourth explanation which excludes from
the purview of the criminal offence the imputations with
such insinuation as to the character of the affected
person unless it is designed to adversely affect the
reputation "in the estimation of others".
13. It is necessary to focus on the expression
"publishes". The word "publish" is defined by
Chambers, 20th Century Dictionary to connote :
"to make public; to divulge; to announce; to
proclaim; to send forth to the public; to put
forth and offer for sale orig. any article, new
books, newspapers, etc. to put in circulation."
14. Halsbury Laws of England (Third Edition)
explains that :
"publication consists in making known the
defamatory statement after it has been reduced
into some permanent form"
15. The authoritative commentary on Law of
Defamation and Malicious Prosecution (second edition)
authored by H.P. Gupta explains the word "publish" as
under :-
"1. To make known or announce publicly;
promulgate; proclaim. (2). To print and issue
(a book, magazine, map, etc.) to the public. (3)
Law to communicate (a defamation) to a third
person (4). To print and issue the work of; to
publish Hemingway (5). To engage in the
business of publishing books, magazines,
newspapers, etc. (6) To have one‟s work
printed and issued."
16. Pertinent to note in the context of use of words "in
the estimation of others", the commentary on Indian
Penal Code by Ratan Lal (2002) in relation to the offence
of defamation begins with the general comment that:
"the essence of the offence of defamation
consists in its tendency to cause that
description of pain which is felt by a person
who knows himself to be the object of the
unfavourable sentiments of his fellow-
creatures, and those inconveniences to which a
person who is the object of such unfavourable
sentiments is exposed."
17. V. Mittar in his commentary on Law of Defamation
& Malicious Prosecution (Twelfth Edition) expounds on
the subject with reference to fourth explanation thus :-
"And further since in Explanation 4, appended
to the section, it is laid down that no
imputation is said to harm a person‟s
reputation unless it lowers him in the
estimation of others, it follows that there can be
no publication unless it reaches at least a third
person, in whose estimation the reputation of
the person defamed could possibly suffer."
(emphasis supplied)
18. Following the view taken by the full bench decision
of the Privy Council in Queen Empress Vs. Taki Husain,
7A 205 (FB) -4A.W.N. (1884) 340, Allahabad High Court
in a very early decision reported as Khima Nand and
Anr. vs. Emperor, 1936 SCC Online All 307: 1937 Crl.
LJ 806 held thus :-
"The only rule is that there can be no offence
of defamation unless the defamatory statement
is published or communicated to a third party,
that is, to a party other than the person
defamed..."
(emphasis supplied)
19. In a very well researched judgment on the subject
rendered by Patna High Court in case reported as
Sardar Amar Singh Vs. K.S. Badalia, 1964 SCC OnLine
Pat 186 : (1965) 2 Cri LJ 693, it was held thus :-
"One of the ingredients of the offence of
defamation is that there should be making or
publication of any imputation concerning any
person. Such imputation may be words either
spoken or written. The defamatory matter has
to be published. In other words, it has to be
communicated to a person other than the
person defamed. The word „makes‟ in S. 499
refers to the originator of the defamatory
matter. I can usefully refer here to Volume III,
6th edition of Dr. Sir Hari Singh Gour's Penal
Law of India, page 2340 where the learned
author has noted that the word "makes" in S.
499 has been used in its etymological sense as
connoting "to make public" or to make known
to people in general. Publication implies
communication to at least one person other
than the person defamed. In other words,
communication must be to a third party, that is,
to a party other than the person defamed (vide
Khima Nand v. Emperor, 38 Cri LJ 806
(All)..."
(emphasis supplied)
20. Similar questions had arisen before the High
Court of Andhra Pradesh in case reported as Challa
Subbarayudi Vs. Darbha Ramakrishna Rao, 1967 SCC
Online AP 137 : (1968) 2 ALT 101 and the following
view was taken :-
"13. Publication is the communication of the
words or doing the defamatory act in the
presence of at least one other person than the
person defamed. Communication to the
plaintiff himself would not be enough because
defamation is an injury to one's reputation and
reputation is what other people think of man,
and not his own opinion of himself. Publication
of the defamatory act or statement therefore is
an essential element for the constitution of
defamation."
(emphasis supplied)
21. In the context of similar criminal complaint under
Section 500 IPC, the Kerala High Court in the matter
reported as P.R. Ramakrishnan Vs. Subbaramma
Sastrigal and Anr., 1986 SCC Online Ker 309 : AIR
1988 Ker 18 : 1988 Cri. LJ 124 took the following view :
"....To attract the definition of the offence of
defamation as contained in S. 499 of the I.P.C.,
the imputation should have been made or
published "whoever makes or publishes any
imputation" are the relevant words employed
in the section. The word "makes" is intended to
supplement the sense of "publishes." Those
words conjunctively connote "to make public."
It is settled proposition that there is no
publication if the libeller merely communicates
his libel to the person defamed." (emphasis
supplied)
22. Similar questions arose before the Madras High
Court in the case of Smt. Dr. Nagarathinam vs. M.
Kalirajan, 2001 SCC Online Mad 355 : 2001 Cri LJ
3007. Drawing strength from the observation of the
Supreme Court in Bilal Ahmed Kaloo vs. State of Andhra
Pradesh, (1997) 7 SCC 431 : (1997 Cri LJ 4091), albeit
in the context of offence under Section 505 IPC, to the
effect that the words "makes or publishes any
imputation" should be interpreted as "words
supplementing to each other", and that a maker of
imputation without publication is not liable to be
punished under that section", the Madras High Court
held that "the publication with intention of harming the
reputation of the person concerned to make others to
know the imputation is the most important ingredient to
make out an offence under S. 500 IPC" and further that
"there will be no publication, if the complainant alone is
informed of the defamatory words", and also that "a
communication to the defamed himself will not be a
publication."
23. In view of the above, this court holds that in
absence of allegations or evidence showing that the
defamatory material was published to an individual other
than the person defamed, a case for criminal action for
the offence of defamation cannot be maintained."
10. It is noted that in Arundhati Sapru (supra), the law to above
effect was not noticed.
11. Given the fact that the petitioner did not examine any other
person to whom the incriminating material may have been published,
the view taken by the courts below cannot be faulted.
12. The petition is devoid of substance and is dismissed. This
disposes of pending application as well.
R.K.GAUBA, J.
JANUARY 23, 2019
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