Lines Jalandhar vs Kailasho Devi
2021 Latest Caselaw 4005 HP

IN THE HIGH COURT OF HIMACHAL PRADESH
               AT SHIMLA




                                                    .
            ON THE 19th DAY OF AUGUST, 2021





                       BEFORE





     HON'BLE MR. JUSTICE ANOOP CHITKARA
         CRIMINAL REVISION No. 49 of 2019





Between:-

THE EDITOR OF PUNJAB KESRI
GROUP NEWSPAPER, CIVIL

LINES JALANDHAR, PUNJAB

                                             ....PETITIONER.

(BY SH. MANOHAR LAL SHARMA, ADVOCATE)



AND

1.    STATE OF HIMACHAL PRADESH




      THROUGH SECRETARY HOME





2.    THE SUPERINTENDENT,
      OFFICE OF THE JUDICIAL
      MAGISTRATE FIRST CLASS





      INDORA, KANGRA, H.P.

                                        .....RESPONDENTS.

(BY MR. NAND LAL THAKUR, ADDITIONAL
ADVOCATE GENERAL WITH MR. KUNAL THAKUR,
DEPUTY ADVOCATE GENERAL AND MR. RAM LAL
THAKUR, ASSISTANT ADVOCATE GENERAL)




                                   ::: Downloaded on - 31/01/2022 22:55:05 :::CIS
                                  2




            This petition coming on for orders this day, the
Court passed the following:




                                                               .
                             JUDGMENT

TRIAL COURT CASE Pvt. Complaint No. 48-II, of 2018, pending

NO. before learned Judicial Magistrate First Class, Indora District Kangra, H.P.

Challenging the order taking cognizance and putting

notice of accusation, the Editor of Punjab Kesri Group Newspaper has come up before this Court by filing the

present petition under Section 482 Cr.P.C.

2. On 1st January 2018, the Superintendent of the Court of learned Judicial Magistrate First Class, Indora,

District Kangra, H.P., filed complaint under Section 195 of Code of Criminal Procedure against Editor of Punjab Kesri

Group Newspaper. The complainant alleged the

commission of offences punishable under Sections 174, 175, 176, 182 & 187 IPC. The complaint reads as follows:

" It is respectfully submitted that a Civil Suit No.89/2012 titled as "Hari Singh v/s Kailasho Devi etc." is pending before this Court at Indora, District Kangra. Ld. Counsel for the plaintiff had filed an application under Order 5 Rule 20 of CPC for substituted service of defendants Nos.2 to 4 in the aforesaid suit and this Court vide order dated 17.5.2013 ordered that defendants No.2 to 4 be

summoned by way of publication in Hindi Newspaper, Punjab Kesri on depositing necessary publication

.

charges within 10 days and case was fixed for

13.09.2013. Orders dated 14.11.2013, 04.01.2014, 22.02.2014, 22.3.2014, 31.05.2014, 25.9.2014,

22.1.2015, 2.8.2015, 15.1.2016, 30.5.2016, 17.9.2016, 11,11,2016 shows that several reminders were issued to Editor of Punjab Kesri Group Newspaper, but no

report of publication received till date in compliance of order dated 17.5.2013 despite necessary steps taken by the plainffs. On dated 18.4.2017, Ld. Counsel for

the plaintiff moved an application for taking necessary action under IPC against the Editor of Punjab Kesri Group for not publishing the matter as well not

sending of report of publication to this court till date and this court vide order dated 18.04.2017 issued show

cause notice to the concerned editor of newspaper to appear in person and to show cause why not

appropriate proceedings be initiated against him and reminder of publication was also issued to the Editor

alongwith show notice. But neither publication report received nor concerned Editor appeared before the court nor any reply of show cause notice was filed. On dated 16.06.2017, one more opportunity was given to the Editor of Punjab Kesri Group for 31.08.2017 for compliance of order dated 18.04.2017 aforesaid. But, again neither publication report received, nor editor

appeared in the Court nor any reply of show cause notice was filed in the court.

.

In these circumstances, order dated 05.12.2017

is passed by this Court with prayer to Ld. C.J.M. Kangra at Dharamshala to take action against the

Editor of Punjab Kesri Group for alleging commission of offencespunishable under Section 174, 175, 176, 177, 178, 182 & 187 of the Indian Penal code. Editor

of Punjab Kesri Group Newspaper intentionally and without reasons has not filed required publication report, required information and has failed to appear

before the court. He intentionally and without reasons has also failed to assist this court and also sent false information as stated in order dated 5.12.2017.

Aforesaid acts of omissions on the part of Editor is interference in the process of the court and law.

Contents of order dated 5.12.2017 be also read as part and parcel of this complaint. Hence, present

complaint is submitted."

3. After that learned Judicial Magistrate First Class-I, Dharamshala issued following notice of accusation to the Editor Ravinder Singh Jolly, which reads as follows:

"IN THE COURT OF AKANKSHA DOGRA, JUDICIAL MAGISTRATE-1st CLASS-I, DHARAMSHALA, DISTRICT KANGRA, H.P.

State vs. Ravinder Singh Jolly (Editor of Punjab Kesri.

NOTICE OF ACCUSATION.

There are allegations against you that on 18.04.2017 and 16.6.2017, show cause notices have

.

been issued against the Editor of Punjab Kesri why not

appropriate proceedings be initiated against him as well as reminder of publication was also issued by

public servant legally competent to issue such process but despite receiving show cause notice you intentionally omitted to appear and filed reply and

thereby you have committed an offence punishable under Section 174 of Indian Penal Code, and within the cognizance of this Court.

Secondly, on the aforesaid dates, being legally bound to produce the report before the Court did intentionally omitted to produce the same before the

Court and thereby you have committed an offence punishable under Section 175 of Indian Penal Code

and within the cognizance of this Court.

Thirdly, after receiving material for publication

and the amount being legally bound to submit information before Court, but you intentionally omitted

to give such information and thereby you have committed an offence punishable under Section 176 of Indian Penal Code by furnishing false information, and within the cognizance of this Court.

Fourthly, on 30.10.2017, it has been stated that neither payment of publication of matter received nor matter for publication received whereas as per the Court records matter was already sent to newspaper

and vide letter dated 9.10.2013, receipt of amount as well as publication matter has been received by the

.

concerned court, and thereby you have committed an

offence punishable under Section 177 of Indian Penal Code by furnishing false information, and within the

cognizance of this Court.

Fifthly, on 30.10.2017, it has been stated that neither payment of publication of matter received nor

matter for publication received with an intent to cause injury to another person and thereby you have committed an offence punishable under Section 182 of

Indian Penal Code and within the cognizance of this Court.

Lastly, you have not published the matter given

to you and furnish false reports and mis-guided the court as well as did not file the reply of show cause

notice and intentionally omitted to give such assistance to the public servant in execution of his public duty and

thereby you have committed an offence punishable under Section 187 of Indian Penal Code and within the

cognizance of this Court.

Certified that the contents of the above said notice have been read over and explained to the accused in Hindi.

-sd-

(Akanksha Dogra) Judicial Magistrate First Class Dharamshala, District Kangra, H.P."

4. Challenging the said notice of accusation, the Editor has come up before this Court.

.

5. I have heard Mr. Manohar Lal Sharma, learned counsel representing the petitioner.

6. Initially, the State was representing the respondent- State, as is evident from the orders dated 21.1.2019

onwards. On 27th September 2019, it was contended on behalf of the State whether they should represent the 2nd respondent-Superintendent of Ld. Judicial Magistrate or it

would be the Hon'ble High Court of H.P. On 15.11.2019, this Court issued notice to the 2nd respondent. On 13th December 2019, this Court passed the following orders: -

Pursuant to the notice issued by the Registry, interms of the previous orders passed by this Court,

Superintendent of the office of Judicial Magistrate

1stClass, Indora is present. He prays for time to take steps for moving an application to the appropriate

authority,seeking assistance of a counsel, as per Rules. Let the needful be done within a period of eight weeks from today. Further, in the facts and circumstances of this case, this court is of the considered opinion that the State of Himachal Pradesh cannot be dis-arrayed from the memo of parties in the present case. It is for the simple reason that the case before the learned Judicial Magistrate 1st Class, Dharamshala, District

Kangra, from which the present proceedings have originated, is a State case, and even though the office

.

of learned Judicial Magistrate 1st Class, Indora,

District Kangra is the complainant before the learned trial court, the case is being prosecuted through the

State. As such, by virtue of the aforesaid fact alone, the State of Himachal Pradesh remains a necessary party to any proceedings which emanates from or are related

to the complaint. Accordingly, while the State of Himachal Pradesh through Secretary (Home) shall continue to be respondent in the present case, the

Superintendent,office of Judicial Magistrate 1st Class, Indora, is ordered to be arraigned as respondent No.2 in the instant Revision Petition, to facilitate the

proceedings. The Registry is directed to carry out necessary corrections in the memo of parties in

accordance with this order. List after ensuing winter vacation."

7. Given above, the State has put in an appearance on

behalf of the complainant-respondent. Mr. Nand Lal Thakur learned Additional Advocate General has argued on behalf of the complainant. I have also gone through the pleadings in the petition.

8. Since the certified copies of the complaint, notice of accusation, and other orders have been annexed, these are

admissible, and there is no reason to doubt its authenticity. Given this, the Court proceeds on the presumption about the

.

authenticity of these documents.

9. A perusal of the order dated 5th December 2017,

passed by learned Civil Judge Indora, reveals that a show- cause notice was sent to the Editor of Punjab Kesri

Newspaper; however, neither the Editor appeared nor was reply filed on his behalf. Learned Court referred to a letter dated 3.10.2017, written on behalf of the Advertisement

Executive. The Punjab Kesri Group of Newspaper asked them for details for publication subject to payment of money. After an inquiry from Civil Ahmad and Niab-Nazir,

the Court put up the matter post-lunch and on 5 th December 2017, itself passed the following orders: -

"5.12.2017

Present: Shri A.S. Pathania, Adv. For plaintiffs Defendants No.1 & 5 already exparte.

Ahlmad report shows that show cause notice duly sent through fax to Editor of Punjab Kesri Group. Neither editor of Punjab Kesari Group present, nor reply of such show cause notice was filed today. A letter is received from Punjab Kesri Group on dated 03.10.2017, in which it is stated that neither payment for publication of matter received nor matter for publication received by them. Before proceedings

further in the present case, in view of their letter, it is necessary to find out whether the matter for publication

.

and amount has been sent to the Punjab Kesri Group or

not? Civil Ahlmad and Naib Nazir is directed to give report regarding verification of the aforesaid facts. Put

up after lunch time.

-Sd/-

(Niranjan Singh) Civil Judge Indora.

Present:

               r            to
     CALLED AGAIN AFTER LUNCH

     5.12.2017:

Shri A.S. Pathania, Adv. for plaintiffs

Defendants No.1 & 5 already exparte.

Heard. Record perused. Show cause

notice duly sent through Fax to Editor of Punjab Kesari Group. Even previous record also shows that show cause notices were sent to the Editor of Punjab Kesari

Group. Neither editor of Punjab Kesari Group or any

other person on his behalf appeared nor reply of show cause notice has been filed today in compliance of

previous orders. A letter is on record received through post from Punjab Kesari Group showing that they have nt received amount for publication and matter for publication. Report of court najir shows that amount for publication of matter has already been sent to the concerned newspaper namely Punjab Kesari Group. Report of Alhmad shows that matter for publication has already been sent to the concerned newspaper. Even

letter of concerned newspaper dated 09.10.2013 on record also shows that concerned newspaper group has

.

received the amount from this court for publication of

matter. Moreover, records of case further shows that reminder for publication of matter had been sent to

concerned newspaper several times but from dated 17.5.2013 till date no effective steps has been taken by the concerned newspaper. Therefore, contents of their

aforesaid letter are not believed and it appears that a false contents/information in aforesaid letter has been given by the Punjab Kesari Group intentionally just to

harass the plaintiff and to waste the Court time. This court vide order dated 17.05.2013 directed defendant No.2 to 4 be summoned by way of publication in Hindi

Newspaper "Punjab Kesari" on depositing publication charges. Matter as per order dated 17.05.2013 has not

been published by Punjab Kesari Group till today despite several reminders without any reason and

despite show cause notice issued.

Aforesaid observations and previous orders,

clearly show that editor of Punjab Kesari Group intentionally and without any reasons is not complying the orders of this Court being court of justice. It is clear interference in the process of the Court. It is duty of aforesaid editor to comply the orders of Court and to co-operate with the Court and therefore, the conduct and behaviour of aforesaid editor is against the interest of justice as well as against the interest of public.

Proceedings of the case cannot be reached to the stage of its conclusion due to non-comply of the orders by

.

the aforesaid Punjab Kesari Group Newspaper. This

type of conduct is not expected from the aforesaid responsible person i.e. Editor. This is also wastage of

plaintiffs' money, govt. resources and court time. Therefore, in the aforesaid compelling circumstances and in th interest of justice, this court is compelled to

take appropriate action against the aforesaid editor of Punjab Kesari Group, Civil Lines, Jalandhar (Punjab). Therefore, I, Niranjan Singh, Civil Judge-cum-Judicial

Magistrate 1st Class, being public servant as per Section 195 of Cr.P.C., is submitting the complaint along with orders dated 17.5.2013 and all subsequent

orders till date to Ld. C.J.M. District Kangra at Dharamshala with the prayer for taking action against

the aforesaid editor of Punjab Kesari Group for alleging of commission of offences punishable under

Section 174, 175, 176, 177, 182, 187 of Indian Penal Code. It is not appropriate to take cognizance by this

Court for alleging aforesaid offences because it is not appropriate to be combined substances of this Order along with Orders dated 17.5.2013 and all subsequent orders till date be prepared and certified copies of this order along with orders dated 17.5.2013 and all subsequent orders till date also be submitted with this complaint. Superintendent of this Court being senior

official is directed that complaint reference be submitted accordingly and other needful to be done.

.

At this stage, Ld. Counsel for plaintiffs stated

that the Punjab Kesri Group intentionally and without any reasons is not publishing the matter and not

returning the amount of the plaintiff and therefore, they have no faith in Punjab Kesri Group.

In these circumstances, Ld. Counsel for plaintiffs

prayed that order dated 17.05.2013 be complied by way of publication in Hindi newspaper Amar Ujala. Prayer considered and allowed. Let defendants No.2 to

4 be summoned by way of publication in Hindi newspaper "Amar Ujala" on depositing necessary publication charge within 10 days for 29.01.2018.

-sd/-

(Niranjan Singh)

Civil Judge, Indora.

10. Mr. Manohar Lal Sharma, learned counsel appearing for the petitioner, states that non-publication took

place because of the administrative lapses. It was never the intention of the Newspaper to cheat anybody. Learned counsel further argued that the Newspaper works with the highest standard of ethics and honesty. Ld. Counsel further submits that the newspaper group is known for its uprightness and fight against corruption and cheating, and it is unthinkable that they would indulge in any

misappropriation of funds. Learned counsel further submits that the Editor was unable to trace complete details about

.

the publication and the payment due to some clerical error.

However, learned counsel states that they are ready to

reimburse the amount paid for publication. Since non- publication caused huge embarrassment to the Court and difficulty to the litigant, as such he is not averse to the

proposal of the Court if some compensation is paid to the litigant and also to the system. Given the entirety of the

allegations and the scope and nature of litigation pending

before this Court, learned counsel submits that the exact amount is not precise and as such, even if this Court orders

lump sum payment as return of publication charges along with compensation, then they cannot have any objection.

11. A perusal of complaint dated 1.1.2018, does not

make out case punishable under Sections 174, 175, 176,

177, 178, 182 and 187 of IPC.

12. Section 174 IPC deals with non-attendance in obedience to an order from a public servant. There is nothing to show that who was the Editor, who had to be served. There are no allegations that on what basis the fault of the advertisement department of Punjab Kesri Group of Newspaper could be liable for criminal action against

Editor of the Newspaper. If any officer of the Newspaper group had acted in violation of the Court order, certainly the

.

Editor by default could not be liable for the same unless

there are allegations on that behalf. In the present

complaint, there is neither any allegation nor any evidence about the involvement of Editor Shri Ravinder Singh Jolly. Thus, there were no directions issued to the accused to

attend the Court, which would make out an offence under 174 of IPC. r

13. Further, the offence under Section 175 IPC will be made against the public servant, who was mainly bound to produce it. There is no evidence that who was the person or

custodian of such record.

14. Regarding Section 176 IPC, there are no allegations

that the Editor was aware of the Court orders. Despite

knowing about such orders, he willfully did not convey the information and committed the offence. As such, there are no ingredients of Section 176 IPC.

15. Regarding Section 177 IPC, by no stretch of the imagination, it can be concluded that the information, which was furnished can be outrightly stated to be false. There may be some unintentional omission of information,

or complete information might not be given, but just because of ministerial lapses. Further, there is no iota of any

.

intention on the part of the Newspaper group to give false

information.

16. Similarly, Section 178 IPC of refusing affirmation on oath is not made out because of the absence of the

specific allegation against the accused. There is neither any allegation nor any evidence that it was the accused who had handled the advertisement and the amount thereof.

17. As far as the offence under Section 182 IPC is concerned, there is no evidence of any intention on the part

of the person who had supplied incomplete information or false information; thus, the present accused is nowhere

liable for that and is entitled to the benefit of the doubt.

18. Regarding Section 187 IPC, the omission to assist

public servants would come only when the person supposed to assist was the right person to do so. In the present case, the right person to assist the Court was the Advertisement Manager and the concerned officer of the advertisement department, who has received the publication money and the notice of publication. The Editor cannot be vicariously held liable for administrative lapses by the administrative

staff. Furthermore, the primary job of the newspaper is printing news for the people. In aid to run such an

.

establishment and to generate revenue, different wings are

created.

19. The primary work of the Editor is to ensure that authentic, correct, and trustworthy news is published and

put before the people. Thus, he cannot be held responsible for every act of commission or omission unless evidence

shows his involvement, knowledge, and active participation

in the criminal conspiracy. Thus, on the face of the complaint none of the alleged offences is made out.

20. Mr. Manohar Lal Sharma, learned counsel, has also argued that under 195(1)(a) CrPC, the complaint could have

been filed only by the public servant concerned. He further

argued that the Superintendent of JMFC is not the

concerned public servant. Since I am inclined to allow the petition and quash the complaint on the first ground itself, there is no need to discuss the second aspect, which would be only academic.

21. Given above, the petition is allowed. The order taking cognizance and consequent notice of accusation

dated 21.11.2018 is quashed and set aside. All further proceedings are also set aside.

.

22. Given the seriousness of allegations and casual

approach of the publication wing of the petitioner-group, undoubtedly the litigant suffered and valuable time of the court was also wasted in the process. Even if the nature of

allegations may not make out a case for criminal action, still it cannot be lost sight of that the publication money

was received by the newspaper group and due to the

administrative lapses at their end, the judicial work suffered extensively. Thus, with a view to compensate, petitioner

has to return publication money to the depositor and has also to pay some compensation to the system.

23. However, since the money received for publication cannot be quantified in the absence of evidence as such, Mr.

Manohar Lal Sharma learned Counsel for the petitioner has agreed to the proposal of the court to pay a compensation of Rs.20,000/- instead of returning the alleged publication charges and also for the inconvenience caused to the Court.

24. Consequently, the petitioner shall deposit a sum of Rs.20,000/- in the Court of Civil Judge, Indora, on or before

30th September 2021. Out of it, Rs.10,000/- be refunded to the concerned parties. The remaining Rs.10,000/- shall be

.

deposited with the Sub Divisional Legal Services

Committee, Indora. Since this Court has taken a

comprehensive view in the peculiar facts and circumstances of the matter, as such, it is clarified that payment of this compensation would not amount to any aspersions on the

petitioner or the newspaper group.

The petition is allowed in the aforesaid terms.

Pending application(s), if any, shall stand disposed of automatically.

                                                (Anoop Chitkara)
    August 19, 2021(ps)                              Judge