Fayaz Ahmed Kaloo vs Tej Krishan Ganjoo
2024 Latest Caselaw 720 j&K

Jammu & Kashmir High Court

Fayaz Ahmed Kaloo vs Tej Krishan Ganjoo on 19 April, 2024

Author: Rahul Bharti

Bench: Rahul Bharti

                                                            Sr. No. 07


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU


Case:-   CRM(M) No. 634/2019
         CrlM No. 1467/2019


1.   Fayaz Ahmed Kaloo, Aged 62 yrs
     Son of Shri Abdul Samad Kaloo,
     R/o Pine Avenue Sector A
     Rawal Pora, Srlnagar.
     Editor-in-chief
     Greater Kashmir Newspaper.
     6-Pratab Park, Srinagar.

2.   Rashid Makhdoomi, Aged 51 years
     S/o Ghulam Muhammad Makhdoomi
     R/o Bismillah Colony, Zakura,
     Srinagar
     Printer/Publisher,
     Greater Kashmir
     6-Pratab Park, Srinagar.

3.   Syed Rizwan Geelani, Aged 29 yrs
     Son of Naseem Ahmed Geelani,
     R/o Shah Hamdan Colony,
     Khoja Bagh BaramuIIa.
     Correspondent, Greater Kashmir
     6-Pratab Park, Srinagar.
                                                           ....Petitioners

            Through: Mr. Navyug Sethi, Advocate

               Vs

Tej Krishan Ganjoo,
S/o Late Radha Krishan Ganjoo
R/o H.No. N-45/C Sector 3
Upper Roop Nagar, Jammu.
                                                          ..... Respondent

             Through: Mr. C. M. Koul, Sr. Advocate with
                      Mr. A. R. Bhat, Advocate

Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
                                    2                         CRM(M) No. 634/2019


                                        ORDER

19.04.2024

01. Publication of two news items in Daily Greater Kashmir

dated 16.10.2015 & 30.12.2016 in the context of DAV School in

Magarmal Bagh area of Srinagar stroked a legal course of action

which landed in this Court. For the facility of reference, the said

two news items so published are reproduced hereunder:-

Govt. Land provided to DAV School sold for Rs. 13 cr Officials of Education Department accused:

Case referred to Vigilance Srinagar, Oct 15: In yet investigations into the over to land mafia.' ―No another shocker from school matter. records were handed over education department, ―Some school records by DSEK to DAV government land handed had gone missing due to management including over to an educational fraudulent means by the land papers and institution measuring 10 some people including other important Kanals has been illegally officials in school documents,‖ reads a sold to a private party. education department complaint submitted by According to officials, some seven years ago,‖ DAV management. the land was provided to official said. Confirming the develo- DAV Trust to run a As per officials, DAV pment, Director School school in Magarmal Bagh Schools were under Education Kashmir area of Srinagar. control of DSEK and (DSEK) Dr. Shah Faesal However the State land concerned Chief said the land has been has been sold to a private Education Officer (CEO) fraudulently sold to a party seven years ago. since 1990 by virtue of private party in 2008. ―There is no mention various lower court ―We have referred the in the official records orders. ―After migration case to Vigilance whether the institution of minority community department for in-depth got this land on lease or the school was investigations.‖ free. There is no record administered by Faesal said he visited available in Directorate of education department till the spot on Thursday School Education September 2013‖ they and started demarcation Kashmir (DSEK) either,‖ said, adding that the of the land which was officials said. DAV administration was provided to DAV They said the land has handed over the management for been sold for Rs. 13 management by virtue of establishing a school. ―It crores in violation of a High Court order. is not proved yet whether rules. The land scam The DAV management the land was given on surfaced recently after had approached lease or free,‖ he said, the DAV management Vigilance department adding that they would highlighted the issue of complaining that ‗officials wait for the Vigilance disappearance of school of DSEK in 2006 report.

        records following which        arbitrarily     sealed    the
        the      directorate    was    school and handed it
        prompted        to     start

Education deptt sits on encroachment of school land at Jawahar Nagar  Will send team to spot to assess situation : DC......................................... SYED RIZWAN GEELANI wherein DAV as it was play their role to get management had constituted in the land retrieved,‖ Srinagar, Dec 29: allegedly sold State violation of rules. the officials said. The School land at Magarmal However CEO As per officials, Education depart- Bagh to a private Srinagar Arif Iqbal DAV schools were ment has failed to property. Malik said he was under control of retrieve the ―The land was not aware of the DSEK and government land given on lease to present status of concerned Chief from encroachers at run a DAV School the DAV Jawahar Education Officer Jawahar Nagar area at Magarmal Bagh Nagar issue. (CEO) since 1990 here which was Srinagar but the ―I am not aware by virtue of various donated to DAV management had about the present court orders, ―After Trsut to run their fraudulently Commissioner Last year, after status of this issue. migration of school. tampered the Srinagar besides a dissolving the DAV There has been no minority Sources said the revenue records case was registered managing body, communication community, the land is used for and sold the land to in Vigilance Chief Education from past six school was construction a private property,‖ department,‖ the Officer (CEO) months over the administered by purpose by some the officials said. officials said. Srinagar was issue,‖ CEO Education influential people. ―The land was The Sources authorized as the Srinagar said. department till Pertinently, the spread over 10 however said after administrator of the Meanwhile, September 2013,‖ Director-ate of Kanals for school selling land at DAV Jawahar Nagar sources said the they said. School Education but was sold Magarmal Bagh School to run the matter was taken Deputy Kashmir (DSEK) in fraudulently. There ―illegally,‖ illegal day-to-day affairs. up with the district Commissioner (DC) October last year is no mention in the construction was ―CEO was administration Srinagar Farooq dissolved the official records started at Jawahar authorized to Srinagar and Ahmad Lone said a managing body of whether the Nagar where the exercise powers of officials were asked team would be sent DAV school institution got this DAV management the management to do demarcation to the spot at Jawahar Nagar as land on lease or had earlier committee till of the government Jawahar Nagar to the members of a free. There is no established a further orders. But land donated to assess the single family had record available in school. the issue was later DAV for running situation. ―I will been nominated as DSEK either,‖ ―It is not hushed up by the their school. send a tem there its members. officials said. confirmed whether department,‖ the ―There was no (Jawahar Nagar) to Officials said the They said the the structure being officials wishing not further progress in see the present managing land was for Rs. 13 constructed there is to be named. it. It is a huge scam situation there,‖ committee was crores in ―violation commercial or it will ―Management where district Lone said. dissolved after a of rules.‖ ―An be used for some body of DAV School administration and multi-crore scam inquiry was also other purpose,‖ Jawahar Nagar revenue department was unearthed initiated by Deputy sources said. School was revoked were supposed to

02. By reading and reckoning the aforesaid two news items

as damaging and defamatory to the reputation of the DAV

Management in administration and management of the school as

an institution and its premises as property, the respondent - Tej

Krishan Ganjoo acting in his purported capacity as Chairman of

the Management Committee DAV Public Secondary School,

Jawahar Nagar, Srinagar came forward with a criminal complaint

filed under section 500 of the Ranbir Penal Code alleging the

aforesaid two news items being defamatory in all its intent and

import.

03. A criminal complaint came to be filed on 01.03.2017

before the court of Judicial Magistrate Ist Class (Sub Judge),

Jammu on file No. 48/Complaint of 2017.

04. The trial court of Judicial Magistrate Ist Class (Sub

Judge), Jammu, vide an order dated 01.03.2017, came to

entertain the complaint but deferred the cognizance taking and

consequent issuance of process by resorting to a direction for an

inquiry under section 202 of the Jammu & Kashmir Code of

Criminal Procedure, Svt., 1989 and sought an inquiry report from

the Sr. Superintendent of Police, Jammu.

05. Upon receipt of the requisite inquiry report, the trial

Court of Judicial Magistrate Ist Class (Sub Judge), Jammu came

to hold that a prima-facie case is made out for taking cognizance

and issuance of process to the accused persons so named in the

complaint and they being the Editor of the newspaper Daily

Greater Kashmir, Printer/Publisher of the newspaper Daily

Greater Kashmir and Author of the news article and, accordingly,

directed issuance of process against the petitioners vide an order

dated 03.05.2017.

06. It is against this cognizance taking order of the Judicial

Magistrate Ist Class (Sub Judge), Jammu that the present

petition came to be filed by the three accused persons on

30.10.2019 under section 561-A of the Jammu & Kashmir Code

of Criminal Procedure, Svt., 1989. However, before coming with

the institution of the present petition, the petitioners as accused

persons had come to cause their appearance in the complaint but

the proceedings on the complaint file remained static as it is

without further proceedings.

07. In terms of an order dated 27.12.2019, this Court in the

present petition came to stay the proceedings on the file of the

said criminal complaint against the accused petitioners.

08. Section 500 of the Ranbir Penal Code, Svt., 1989

penalizes a person who defames another. Defamation is defined

under section 499 of the Ranbir Penal Code, Svt., 1989. For the

sake of reference section 499 of the Ranbir Penal Code is

reproduced herein:-

―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.

Explanation 1.--It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person, if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.--It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.--An imputation in the form of an alternative or expressed ironically, may amount to defamation.

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.‖

09. Section 499 of the Ranbir Penal Code, Svt., 1989 very

thoughtfully correlates word ―imputation‖ through a spoken or

written words which has the intent of harming or having the

potential to harm, with respect to the reputation of a ―person‖

against whom the spoken or written words have come into

picture.

10. The word ―person‖ obtaining in section 499 of the Ranbir

Penal Code. Word ―person‖ is defined in section 6(11) of the

Ranbir Penal Code and that includes any Company, or

Association, or Body of Persons whether incorporated or not.

11. By this definition of person in the J&K Ranbir Penal

Code, the Management Committee of an Educational Institution

can also reckon itself to be a victim of defamation at the hands of

a person who comes forward with any publication or oral

representation bearing imputation intending to harm or having

reason to believe that such imputation will harm the reputation of

such body of person identified as Management Committee of a

well respected Educational Institution.

12. When this Court examines the contents of the two news

items in which the intent and import is as if the management

committee of the DAV Trust has sold out the school premises

which is housed on a Govt. granted land and for that purpose

even a figure of Rs. 13 crores as price fetched gets mentioned in

the news items but without any corresponding or contemporary

reference to record on the basis of which the allegations are so

being stated in the news items, then surely the reputation of the

Management Committee of the DAV Institution comes under bad

light in the eyes of the readers/consumers of the news items. The

newspaper ―the Daily Greater Kashmir‖ being a very popular print

publication of the then State of Jammu & Kashmir has gone for

reading amongst the general public obviously leaving them with a

prima-facie impression that the DAV Management has acted as if

fence eating the crop. The intent and impression of the two news

items as per the complainant is what constitutes the defamation

and it is not for this Court to now substitute itself in place of the

trial court of Judicial Magistrate Ist Class (Sub Judge), Jammu to

appreciate the defence of the petitioners in response to a criminal

complaint so filed by the respondent and taken cognizance of.

13. Learned counsel for the petitioners makes reference to a

judgment of this Court in the case of Aditya Raj Kaul Vs Naeem

Akhter, 2021(6) JKJ 738 by reference to para 33 that the present

petition deserves to be seen in the light of the position of law as

settled by this Court.

14. This Court would have registered its agreement with the

learned counsel for the petitioners if the print impression of two

news items would have anywhere referred as to by reference to

which particular Govt. record and reference to the statement of

which particular Govt. official of the Education Department, the

two news items were coming into public domain alleging sale of

the school premises that too on the quoted amount of Rs. 13

crores, then a consideration would have been spared to entertain

the petitioners in the present petition but that is not the case in

the present case. Least this Court can observe is that the two

news articles are too loose ended in terms of its impression that it

is prima-facie more on the sensationalization and scandalizing

side of the news items rather than on apprising the General

Public about state of facts obtaining regarding which the news

items were meant to be published to enlighten the general public

mind.

15. The petitioners may have a defence at their disposal on

the merits of the case including locus of the petitioners, the bona

fide of their news items on the basis of supporting Govt. record

but that all is a matter of the trial for the trial court to take care

of and not for this Court to exercise inherent power under section

561-A of the Code of Criminal Procedure, Svt., 1989 to decode the

defence of the petitioners in answer to the criminal complaint so

filed.

16. Therefore, this Court finds that this petition is

misconceived and deserves to be rejected. Accordingly, the

petition is dismissed and the trial court of Judicial Magistrate Ist

Class (Sub Judge), Jammu is directed to resume the trial of the

criminal complaint.

17. Connected application shall also stand dismissed.

(RAHUL BHARTI) JUDGE JAMMU 19.04.2024 Muneesh Whether the order is speaking : Yes / No Whether the order is reportable : Yes / No