Sri.Channegouda S/O vs Sri.Manjunath Subbraya Hegde
2022 Latest Caselaw 8909 Kant

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                                     CRL.P No. 100578 of 2019


         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

       DATED THIS THE 16TH DAY OF JUNE, 2022

                         BEFORE

       THE HON'BLE MR JUSTICE V.SRISHANANDA

  CRIMINAL PETITION NO.100578 OF 2019 (482)

BETWEEN:

SRI CHANNEGOUDA
S/O NARAYANAGOUDA,
AGE: 40 YEARS, OCC: EDITOR PRINTER
AND PUBLISHER OF VRL MEDIA LTD.,
R/O: 2ND FLOOR VRL COMPLEX,
NEW COTTON MARKET,
HUBBALLI.
                                                 ...PETITIONER
(BY SRI NEELENDRA.D.GUNDE, ADVOCATE)

AND:

SRI MANJUNATH SUBBRAYA HEGDE,
AGE: 48 YEARS, OCCP: AGRICULTURE,
R/O: KAPPIKIERI, HADDENBYAL,
TQ: HONNAVAR-581334.
                                               ... RESPONDENT

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 28.12.2018
PASSED BY THE PRL. CIVIL JUDGE & JMFC, HONAVAR, UTTARA
KANNADA IN CC NO.2/2019, THEREBY TAKING COGNIZANCE FOR
THE OFFENCE PUNISHABLE U/SEC. 500 OF IPC & DIRECTING TO
REGISTER A CRIMINAL CASE & ISSUING SUMMONS AS AGAINST THE
PETITIONER AND CONSEQUENTLY ENTIRE PROCEEDINGS PENDING
THEREON.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
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                                       CRL.P No. 100578 of 2019


                           ORDER

Though this petition is listed for admission, with the

consent of the parties, it is taken up for final disposal.

2. This petition is filed under Section 482 of

Cr.P.C., with the following prayer.

""WHEREFORE, the petitioner most humbly pray that this Hon'ble Court be pleased to;

a) To set aside the order dated 28-12- 2018 passed by the learned Prl. Civil Judge & JMFC-Honavar, Uttara Kannada in CC no: 2/2019, thereby taking cognizance for the offence punishable u/s. 500 of IPC & directing to register a criminal case & issuing summons as against the petitioner and consequently entire proceedings pending thereon,

b) Pass such other order/orders as this Hon'ble Court deems fit to pass in the facts and circumstances of this case in the ends of justice and equity."

3. Brief facts of the case are as under:

CRL.P No. 100578 of 2019

A private complaint came to be lodged by Sri

Manjunath Subbaraya Hegde against the Chief Editor of a

news paper namely 'Kannada Janantaranga' and Chief

Editor of 'Vijayavani'.

4. The complaint averments reveal that a news

item was published in the news paper dated 20.10.2018

with regard to a murder case wherein an archaka of a

temple namely Vishweshara Bhat was murdered. The

news item also carried that one Manjunath Hegde is the

main culprit and while publishing the said news item, the

photograph of the complainant has been published. The

Manjunath Hegde referred to in the said criminal case is

not the complainant and his photograph has been

published as the main culprit. The relatives of the

complainant having noticed the same, brought to the

notice of the complainant about publishing his photograph

in respect of that news item of murder of Vishweshara

Bhat and immediately he tried to contact the petitioners

but there was no proper response. However, on

CRL.P No. 100578 of 2019

verification, a news item was also published regretting the

mistake that has crept in. Nevertheless, the complainant

approached Honnavar Police Station who in turn recorded

a complaint as N.C.No.330/2018 and gave an

endorsement that a private complaint needs to be filed.

Accordingly, he filed a Private complaint to the learned

Magistrate.

5. The learned Magistrate after recording the

sworn statement of the complainant and witnesses by

name Sri Subrahmmanya and Sri Madhukeshwara that

prima facie materials are found against the petitioner to

proceed with the case and issued process. Being aggrieved

by the same, the petitioner is before this Court.

6. In the petition, the following grounds have

been raised.

The impugned order passed by the learned Magistrate is contrary to law, facts and material on record and as such the same are liable to be set aside and consequently the entire proceedings against the petitioner are liable to be set aside.

The learned Magistrate ought to have postponed the issuance of process as the petitioner is

CRL.P No. 100578 of 2019

residing at a place beyond the area in which he exercises his jurisdiction as provided under section 202 of Cr.P.C.

It is settled position of law that where the accused is residing at a place beyond the area of the Magistrate exercises his jurisdiction, it is mandatory on the part of Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 of Cr.P.C.was amended with effect from 22/06/2006 by adding words "& shall, in case where the accused are residing at the place beyond the area in which he exercises jurisdiction." Thus the amended provision casts obligation on the Magistrate to conduct enquiry or direct the investigation before issuing process.

Further the complainant has not stated above the news item which was published on the very next date ie., on 21/10/2018 wherein Rectificatory statement was published on the same page regretting for the mistake which had crept in inadvertently without any intention.

The very publication of the news item next day shows that it was never intended by the petitioner to impute the character of the complainant. And the publication of the next date has not even been stated by the complainant in his complaint.

The entire Criminal Jurisprudence of Defamation rests "Intention", and the very publication of the news item next day shows that there was no intention on the part of the Petitioner to impute the character of the complainant.

The publication of the news item even if accepted would fall under exception 1 of section 499 of IPC. That being the case the impugned order and consequentially the entire proceedings are liable to be set aside.

CRL.P No. 100578 of 2019

The petitioner cannot be said to have published any imputations concerning the complainant/ Respondent herein intending to or knowing and having reason to believe that such imputations will harm the reputations of the complainant. The Learned Judge ought to have noticed that the basic requirements of Section 499 are not attracted and as such the very complaint itself is not maintainable.

When the complaint was presented before the learned Magistrate on 02/11/2018, the Court has recorded about the presence of the complainant & posted for Sworn-Statement of complainant on 28/11/2018. The Court has not taken cognizance on the date of presentation of complaint. And without taking cognizance the Court below ought not to have examined the complainant & his witnesses.

It is submitted that the learned Magistrate has not assigned any reasons at the time of issuing process & taking of cognizance. No speaking order is passed by the Magistrate to show that the sufficient material is produced for taking cognizance u/s.500 of IPC.

Further the statement of Cw-2 & 3 exact replace of each other, which aspect makes it clear that for the purpose of filing the present complaint the witnesses are created.

Further Ex-P-4 which is the Paper publication clearly reveals that full name of Manjunath Ishwar Hegde Aged 50 years resident of Koojalli Menasinakere is forthcoming. This aspect clearly reveals that petitioner at no point of had any intention of defaming the respondent herein.

It is pertinent to submit that in the entire paper publication at Ex P-4 the name of the complainant is mentioned as Manjunath Ishwar Hegde Age 50 years resident of Kujawale

CRL.P No. 100578 of 2019

Manesikeri, which in no way relates to the complainant herein. And thereafter on the next day itself the petitioner got the bonafide mistake rectified.

The respondent has intentionally not produced the publication dated: 21/10/2018 alongwith the complaint with the intention to misguide the Court. Therefore complaint is required to be dismissed for suppressing the material documents before the Court below.

The petitioner infact before publishing the photograph also consulted the Jurisdictional Police orally & got confirmed about the photograph & then published the same.

It is submitted that even if the entire allegations made in the complaint are accepted, the same do not disclose that the Petitioners had committed any offence with any intention or knowledge or having reason. to believe that such publication of the statements made would harm the reputation of the complainant. As such, the impugned order passed by the learned judge and consequently the entire proceedings as liable t obe quashed.

It is submitted that the continuation of the impugned proceedings would amount to gross abuse of process of court and interference at the hands of this Hon'ble Court is necessary to secure the ends of justice.

Thus viewed from any angle even otherwise impugned proceedings are unsustainable and liable to be quashed."

7. Reiterating the grounds urged in the petition,

learned counsel Sri Neelendra D.Gunde, vehemently

CRL.P No. 100578 of 2019

contended that there are no ingredients to attract the

offence alleged against the petitioner inasmuch as

immediately after noticing the mistake that has crept in,

corrective action has been taken by the petitioner and

therefore there is no criminality in publishing the

photograph of the complainant and therefore sought for

quashing of further proceedings.

8. In support of his argument, he relied on the

judgment of the Hon'ble Supreme Court in the case of

Aroon Poorie Vs. Jayakumar Hiremath reported in

(2017) 7 Supreme Court Cases 767. For ready

reference, the relevant paragraphs of the said judgment

are culled out hereunder.

1. "Leave granted. The High Court of Karnataka has dismissed the petitions for quashing of the criminal proceedings filed by the appellants on the ground that this Court in Urmila Devi vs. Yudhvir Singh [(2013) 15 SCC 624] has laid down the law that an order summoning the accused is revisable under Section 397 of the Code of Criminal Procedure, 1973 and hence the proceedings under

CRL.P No. 100578 of 2019

Section 482 Cr.P.C. would not be maintainable. We disagree with the view of the High Court. On a plain reading of the judgment of this Court in Urmila Devi vs. Yudhvir Singh (supra) no such proposition of law has been laid down. In fact, in paragraph 21.3 this Court has held to the contrary i.e. the power under Section 482 would always be available to challenge an order issuing process or summons.

2. The above apart, from the materials on record it appears that the accused appellants in the present appeals have and maintain residence beyond the local jurisdiction of the learned trial Court. Under the provisions of Section 202(1) Cr.P.C. it was, therefore, mandatory for the learned Magistrate to hold an inquiry either by himself or direct an investigation by the Police prior to the issuance of process. Admittedly, the same had not been done. If the aforesaid mandatory provisions of Section 202(1) Cr.P.C. had not been followed, the learned trial Court would not have the jurisdiction to issue process/summons as has been done.

9. Respondent though served with the notice

remained absent.

10. As could be seen from the material on record,

prima facie a wrong photograph has been published by the

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CRL.P No. 100578 of 2019

petitioner/editor of the newspaper in respect of a news

item. However, it was always open for the petitioner to

contact the complainant in person and sort out the issues.

If such a step has been taken by the petitioner, probably

the complainant would not have approached the

jurisdictional magistrate. Mere publishing a news item on

the next date would not be sufficient enough to bring back

the image that has been tarnished by virtue of the

publication made by the petitioner insofar as the

complainant is concerned. Any way, these are the matters

that are to be looked into before the trial Court. Prima

facie materials namely; publication material, the sworn

statement of the complainant and two witnesses would go

to show that for no reason whatsoever the photograph of

the complainant has been published in the news papers

run by the petitioner.

11. Accordingly, this Court is of the considered

opinion that the power vested in this Court under Section

482 of Cr.P.C., could not be exercised in favour of the

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CRL.P No. 100578 of 2019

petitioner. The decision relied on by learned counsel for

the petitioner does not support the case of the petitioner

inasmuch as the facts involved in the present case and the

said case are altogether different. Accordingly, this Court

pass the following;

ORDER

The petition is dismissed.

Dismissal of this petition shall not come in the way of petitioner filing necessary application before the appropriate Court and also to work out the remedy of amicable settlement between the parties.

SD/-

JUDGE

EM