Karnataka High Court

N. Ram S/O. Late G Narasimhan vs Muhammad Zarar Sidibapa on 4 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 4th DAY OF FEBRUARY 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

          CRIMINAL PETITION NO.100862/2015
BETWEEN

1.   SRI N. RAM S/O. LATE G NARASIMHAN
     AGE: 70 YEARS,
     EDITOR IN CHIEF AND PUBLISHER
     THE HINDU, KASTURI BUILDINGS,
     859 AND 860, ANNA SALAI,
     CHENNAI-60002.

2.   KASTURI AND SONS LIMITED,
     A COMPANY INCORPORATED UNDER THE
     INDIAN COMPANIES ACT,
     HAVING ITS REGISTERED OFFICE AT:
     KASTURI BUILDINGS,
     859 AND 860, ANNA SALAI,
     CHENNAI-600 002.

3.   SRI P.VAMAN MALLYA S/O. SHESHAGIRI MALLYA
     AGE: 67 YEARS, PRINTER, THE HINDU
     MANIPAL MEDIA NETWORK LIMITED
     BLOCK NO. 660-661
     BUDHARA SINGHI CROSS,
     ADARAGUNCHI VILLAGE,
     HUBBALLI TALUK, HUBBALLI 580 059.

                                         ...PETITIONERS

     (BY SRI ANIL KALE, ADVOCATE)
                              2




AND

1.    MR. MUHAMMAD ZARAR SIDIBAPA
      S/O. SHAMSUDIN SIDIBAPA
      R/O. JALI ROAD, MAQDOOM COLONY,
      BHATKAL .

2.    PRAVEEN SWAMI
      SON OF K.PONNUSWAMI
      AGED ABOUT 45 YEARS
      JOURNALIST AND WRITER
      THE HINDU, KASTURI AND SONS LIMITED
      CHENNAI-600 002.

                                          ......RESPONDENTS

(BY SRI S.A.H.RAZVI, SRI A.B.PATIL, ADVOCATES FOR
RESPONDENT NO.1)
(PETITION AGAINST RESPONDENT NO.2-STAND DISMISSED)



      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.

SEEKING TO QUASH THE PROCEEDINGS AS AGAINST THE

PETITIONERS (ACCUSED NOS.1 TO 3) HEREIN IN C.C.NO.

856/2013, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS

499, 500, 501 & 502 OF IPC PENDING ON THE FILE OF THE

PRINCIPAL   CIVIL   JUDGE   AND   JMFC   COURT,   BHATKAL.


      THIS PETITION COMING ON FOR HEARING THIS DAY, THE

COURT MADE THE FOLLOWING:
                                   3




                                ORDER

The petitioners are before this Court calling in

question the proceedings in C.C.No.856/2013 registered for

offences punishable under Sections 499, 500, 501 and 502

of the IPC pending before the Principal Civil Judge and

JMFC, Bhatkal.

2. Heard Sri Anil Kale, learned counsel appearing

for petitioners and Sri S.A.H.Razvi, learned counsel

appearing for respondent No.1-

3. Facts as projected by the prosecution are as

follows:

The 1st petitioner N.Ram is accused No.1, the Editor-

in-Chief and Publisher, the HINDU; accused No.3 -

petitioner No.2 is Kasturi & Sons Ltd., the Company that

owns HINDU, accused No.4 - petitioner No.3 is one Vaman

Malya, the printer of HINDU. The 1st respondent is the

complainant. What triggered the registration of the

complaint is a publication that was printed and published

by the petitioners on 01.12.2011. The news item titled

"Breakthrough in 2010 attacks raises fierce of renewed

Jihadists campaign", "Delhi arrests cast lights of Jihadists"

and "Karachi project". The publication made on

01.12.2011 in HINDU newspaper contained the afore-

quoted statements.

4. Based upon the said newspaper statement a

notice was issued upon the petitioners alleging that the

quotation amounted to defaming the complainant-

Mohammad Zaraar Siddibappa. Based upon the said

publication, a complaint is registered invoking Section 200

of the Cr.P.C. for offences punishable under Sections 499,

500, 501 and 502 of the IPC. The complaint so registered

reads as follows:

"COMPLAINT UNDER SECTION 199 AND 200 OF CRIMINAL PROCEDURE CODE READ WITH SECTION 499, 500, 501 & 502 OF THE INDIAN PENAL CODE

The complainant above named begs to submit as follows: . .

1) The address of the complainant for purpose of

notice and process of this Hon'ble Court is as shown in the cause title above.

2) The address of the accused for the purpose of notice and process of this Hon'ble Court is as shown in the cause title above.

3) The Complainant herein is a respected Citizen of Bhatkal, belonging to a respected family. The Complainant prides himself at being the true patriot and a man of Honor. The Complainant hates and condemns violence and antinational activities.

4) The Accused herein knowing fully well that the Complainant has a reputation of honesty, integrity and ethical behavior who is not accused of any offence any where in India with the sole intention of harming the reputation of the Complainant have published defamatory allegations in the Hindu News paper on 01-12-2011 on the front page under the head line Breakthrough in 2010 attacks raises fears of renewed jihadist campaign. which is produced as Annexure 1. The sole intention of publishing defamatory remarks is to demean the status of the complainant.

5) In the article the Second Accused who claims to be an authority on security matters and who claims to be very knowledgable about the entire terrorist groups has deliberately and with the sole intention of

defaming the complainant and to further incite hatred among the people and the Police towards the Complainant published the article claiming that the Complainant is a fugitive and further that the Complainant is the commander of Indian Mujahideen and that he is wanted for his alleged role in a string of urban bombings that began in 2005.

6) The Complainant is neither a fugitive nor is the commander of the India Mujahideen nor does he have the alias of Yasin Bhatkal. Our Client is not aware of any person by name of Yasin Bhatkal.

7) There is nothing which is as obnoxious and defamatory as the publication of the newspaper article which is false to the knowledge of the Accused and has been made only to harm the reputation of the Complainant.

8) The publication of the news that the Complainant is a fugutive is nothing but a tissue of lies designed to harm the reputation of The Complainant and to create enmity towards the Complainant.

9) That the Accused No.1 is the Editor and publisher of the Hindu News Paper. The 2nd Accused is the Author of the article, The third accused is the owner of the Hindu Newspaper and the 4Th Accused is the

Printer of the Hindu Newspaper, which published the above defamatory allegations. knowing them to be false and defamatory and knowing very well that it would certainly bring down the reputation of the Complainant in the eyes of people and destroy complainant fair name and destroy his career. The said imputation was done mischievously by the Accused knowing fully well that it was false and constituted defamation.

10) In the article the Accused No 2 has further alleged that there is a Sidibapa cell. Siddibappa is the surname of the Complainants family. Just like Gandhi was the surname of Mahatma Gandhi whose actual name was Mohandas Karamchand The article is an attempt to discredit and create animosity against the Complainant and his family. All the Accused are fully aware that Siddibappa is the family surname of the Complainant. The entire attempt is to defame and create hatred and animosity towards our client complainant his family which is punishable under law.

11) Similarly on page 14 on the same day under the headline Delhi arrests cast light on Jihadists' 'Karachi Project', the Second Accused has falsely and with the deliberate intention to defame and create animosity against the Complainant written that the

Complainant ran a bomb making factory on the fringes of the Bhadra forests near Chickmaglur, The Accused has further falsely alleged that the Complainant escaped from the police to Bangladesh and stayed in a safe house of Lashkar-e-Taiba. The Accused have further falsely asserted that Siddibappa is back in India commanding the Jihadist Cell responsible for major terrorist attacks since 26/11.

12) The Complainant has studied in the Ajuman-e- Hami-e-Muslimeen school upto grade three way back in Late 1950's at Bhatkal but the Accused have falsely stated that as a teenager the Complainant left for Poona and that the Complainant has contact with Iqbal Ismail Shahbandari and Riyaz Ismail Shahbandri.

13) It is further totally false to say that the Complainant had the overall charge of the network which later became the Indian Mujahideen.

14) The Complainant is totally unaware and has nothing to do with any terror network or the Indian Mujahideen. The above article therefore is not only defamatory but is also designed to cause maximum damage to the standing of the Complainant and his

family in Bhatkal and in Dubai where the Complainant earns a living.

15) The Complainant is a peace loving citizen who has led an impeccable life and has never ever been accused of any crime in his entire lifetime.

16) From the date of publication of the above article which was carried in all the editions of the Hindu newspapers, Nobody wants to talk to the Complainant or meet him. The Complainants Own Brother has stopped speaking to him or visiting him and is mortally afraid of even acknowledging his relationship with the Complainant.

17) It is because of the deliberate misreports and defamatory reporting by the Accused that the Complainant who had a flourishing business in Dubai of importing Rice has come to a stage of near ruin and has been forced to close his business. No supplier is wiling to do business with the Complainant who is unable to earn his living or do any business peacefully.

18) The Hindu is sold through out India, and several people have called the complainant after reading the said article in the newspaper which has embarrassed the complainant and has defamed him.

19) Despite the issuance of notice and admission by the Accused that they published the Article, the Accused has not tendered an apology.

     20)    Therefore the Accused have committed an
     offence       under     section        499,   500,

501 and 502 of Indian Penal Code. It is therefore prayed that this Hon'ble Court may be pleased to take cognizance of the offence and take action against the Accused in accordance with law in the interest of Justice."

5. The learned Magistrate takes cognizance for the

aforesaid offences against the petitioners on 29.10.2013.

Taking of cognizance drives the petitioners to this Court in

the subject petition.

6. This Court by its order dated 29.06.2015 exempted

the appearance of the petitioners until further orders. The

matter was admitted on 25.07.2016 and was directed to be

posted to be heard.

7. The learned counsel appearing for the petitioners

would vehemently argue and contend that the petitioners

have not committed any act of defamation and the

ingredients for such defamation as is found in Section 499

of the IPC cannot be met in the alleged complaint. It is his

contention that it is only reporting of those statements that

are made by the Delhi Police after arrest of six men. There

is nothing defamatory against any individual for the

complainant to register a complaint for the aforesaid

offences.

8. The learned counsel appearing for the respondent

Sri.S.A.H.Razvi would seek to justify the registration of the

complaint to contend that the use of the words jihadists

defamed the complainant though not directly but as a class

and would submit that it is a matter of trial for the

petitioners to come out clean, as what they published is

without doubt defamatory and ingredients of such

defamation as is available under Section 499 of IPC is

definitely met.

9. I have given my anxious consideration to the

submissions made by the respective learned counsel and

have perused the material on record.

10. The afore-narrated fact with regard to publication

and the statement made in such publication is not in

dispute and is therefore not reiterated. Section 499 of the

IPC deals with ingredients of defamation. Section 500 deals

with offences punishable for the offence of defamation as

found in Section 499 of IPC. It is therefore necessary to

notice the ingredients of Sections 499 and Section 500 of

the IPC, which read as follows:

"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.

500. Punishment for defamation.-- Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."

11. In terms of the afore-quoted Section - 499 of the

IPC, the offence of defamation must contain the following

ingredients: making or publishing an imputation concerning

a person; such imputation must have been made by words

either spoken or intended to be read or by signs or by

visible representations; the said imputation must be made

with an intention of harming or having reason to believe

that it will harm the reputation of the person concerned.

The offence punishable under Section 500 of the IPC is

after satisfaction of the aforesaid ingredients.

12. Section 499 of the IPC depicts 10 exceptions

and they reads as follows:

"First Exception--Imputation of truth which public good requires to be made or published.--It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception--Public conduct of public servants.--It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception--Conduct of any person touching any public question.--It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Fourth Exception.--Publication of reports of proceedings of courts.--It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation.--A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.--Merits of case decided in Court or conduct of witnesses and others concerned.--It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Sixth Exception.--Merits of public performance.--It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Explanation.--A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Seventh Exception.--Censure passed in good faith by person having lawful authority over another.--It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Eighth Exception.--Accusation preferred in good faith to authorised per-son.--It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Ninth Exception.--Imputation made in good faith by person for protection of his or other's

interests.--It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.

Tenth Exception.--Caution intended for good of person to whom conveyed or for public good.--It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good."

Therefore, the case at hand will have to be considered on

the touchstone of the ingredients of Section 499 of the IPC

or the exceptions that would move along with Section 499

of the IPC.

13. The offence punishable under Section 500 of the

IPC in terms of its ingredients is to protect the reputation

of a person. Therefore, the ingredients of Section 499 and

the purport of Section 500 are that there should be a

publication that destroys ones reputation in the eyes of the

right minded people. If the case at hand is considered on

the anvil of the afore-quoted provisions of law, it would

unmistakably mean that the publication nowhere harmed

the reputation of the complainant. The publication though

mentions the name of the complainant as fugitive Indian

Mujahidin Commander, a Karnataka resident also known as

Yasin Bhatkal, it is the defence of the publishers that it is

the report of the police and what is reported is what is

furnished by the police.

14. The learned counsel for the petitioners has

placed on record certain additional documents with

regard to certain subsequent developments where the

complainant has been held guilty of several offences

being a member of terrorist gang and has been

sentenced death penalty. The contention being taken is

what was reported was what was reported by the

police and from the police. Therefore, with the

subsequent development, the case of the petitioners

would fall under Exception I and cannot be alleged of

any defamation.

15. Therefore, I deem it appropriate to exercise my

inherent jurisdiction under Section 482 of the Cr.P.C. and

obliterate the proceedings against the petitioners. The view

of mine, in this regard, draws support from the judgment

of the Apex Court in the case of STATE OF HARYANA v.

BHAJAN LAL1 wherein the Apex Court lays down 7

postulates of exercise of jurisdiction under Section 482 of

the Cr.P.C. The Apex Court has held as follows:

"102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

1992 SUPP(1) SCC 335

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

16. In the light of the afore-narrated facts and the

judgment of the Apex Court in the case of BHAJAN

LAL (supra), I pass the following: