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2000 DIGILAW 121 (HP)

MAJOR LEKH RAM SHARMA v. COL. AMBA PRASHAD GAUTAM

2000-05-26

C.K.THAKKER

body2000
JUDGMENT : C.K. THAKKER, CJ. (Oral) : - This appeal is field by the appellant, original complainant, who approached the Court of Judicial Magistrate, 1st Class, by filing case No. 40/2 of 1995 against the accused for offences punishable under Sections 500, 501 read with Section 34 of the Indian Penal Code, All the accused came to be acquitted by a judgment and order of October 30, 1996. 2. The case of the appellant-complainant before the learned Magistrate was that he was an Ex-serviceman and was a member as well as elected General Secretary of H.P. Ex-Servicemen Transport Union, Barmana, Bilaspur. According to the complainant, the said Union was doing its activities in truck operation efficiently since April 25, 1993. The union was enjoying good reputation, fame and reliability. Accused No.1 Col. Amba Prashad (Retired) made certain derogatory and defamatory remarks against the complainant intentionally and with a view to harm the reputation of the Union as well as its office bearers, Certain news items were published at Ex. C-1, Ex-G-2 and Ex.C-3 in "Dainik Tribune (Hindi) on December 17, 1994 and » December 19, 1994" to the effect that the office bearers of the Union were I adopting discriminatory method by giving priority to truck operators of I Bilaspur. Since they were derogatory in nature and the reputation and fame I of the complainant as well as Union and its office bearers was adversely affected, criminal proceedings were initiated by the complainant against the accused for the above offences. 3. It may be necessary to point out at this state that after preliminary evidence and hearing the learned counsel for the complainant as well as accused, summons were issued under Section 500 of the Indian Penal Code in respect of only one news item, viz Ex.C~3 published in the newspaper. No cognizance was, however, taken with regard to other two items, viz., Ex.C-1 and Ex.C-2. 4. The evidence was thereafter, led before the learned Magistrate by the complainant and accused were asked to state their say under Section 313 of the Code of Criminal Procedure, 1973. The arguments were heard and the learned Magistrate held that no case was made out either against accused No. 1 or against accused No.2 and 3 and they came to be acquitted. The said order is challenged by the complainant by filing the present appeal. 5. Mr. The arguments were heard and the learned Magistrate held that no case was made out either against accused No. 1 or against accused No.2 and 3 and they came to be acquitted. The said order is challenged by the complainant by filing the present appeal. 5. Mr. Chauhan, learned counsel for the appellant-complainant submitted that the learned Magistrate has committed an error of fact and of law in acquitting the accused for the offence with which they were charged. 6. He submitted that reading of the news item Ex.C-3, it was clearly established that the statements made therein were defamatory in nature. So far as the evidence is concerned, the fact that it was made by accused No.1 and published by accused Nos. 2 and 3 was fully established by the evidence of PW-1 Lekh Ram, complainant, who at the relevant time was the General Secretary of the Union, as also PW-2 Rattan Lai and PW-3 Surender. He submitted that though searching cross-examination was made by the prosecution witnesses, nothing objectionable was found in their evidence and there was no reason not to rely no the testimony of the above witnesses. 7. My attention was also invited by the learned counsel for the appellant in this connection to a statement of accused No.2 under Section 313 of the Code of Criminal Procedure, 1973, and particularly question No.4, in reply of which the said accused admitted that the news item was published on the basis of information supplied by accused No.1. The counsel, therefore, submitted that the case was proved beyond reasonable doubt and the acquittal recorded by the Judicial Magistrate deserves to be set aside. 8. Mr. Chandel, learned counsel for respondent No.1, original accused No. 1, on the other hand, supported the reasoning and acquit il recorded by the learned Magistrate. He submitted that learned Magistrate was wholly right and fully justified in observing that there was no evidence on record to connect the accused with the crime. According to him, except a bald assertion of the complainant, reiterated by PW-2 Rattan Lai and PW-3 Surender, without there being any material, whatsoever, there was no evidence on record to show that accused No.1 made such statement which was published in the newspaper. No independent witness was examined as to whether in fact such a statement was made by accused No.1, which was published in the newspaper of accused Nos. No independent witness was examined as to whether in fact such a statement was made by accused No.1, which was published in the newspaper of accused Nos. 2 and 3. No person from the press was examined by the complainant on the basis of whose evidence, it can be said that such information was supplied by accused No. 1. 9. In this connection, my attention was invited by the learned counsel to a decision of the Honble supreme Court in Quamrul Islam vs. S.K. Kanta and others, AIR 1994 SC 1733. It was a case under the Representation of the People Act, 1951 and the allegations related to corrupt practices alleged to have been adopted by the returned candidate. In support of such allegation, newspaper reports were produced in the Court and it was argued that from those newspaper reports, it was clearly established that corrupt practice was adopted by the returned candidate. Negativing the contention, the Honble Supreme Court held that newspaper reports, advertisements, messages, etc. were not admissible in evidence, "unless original manuscripts were produced and proved by concerned person". The counsel submitted that in election matters, which are in the nature of quasi criminal proceedings, if such reports are not admissible in the absence of direct evidence and they are described by their Lordships as "at the best secondary evidence of its contents", in a criminal trial, accused cannot be convicted on the basis of such reports. 10. He also submitted that so far as the allegation of giving of priority to truck owners of Bilaspur area is concerned, the complainant himself has admitted in his evidence that such priority was given and when objected by him, that is, by the complainant, he was also black-listed. He, therefore, submitted that even if it is assumed for the sake of arguments, though not admitted, that such statement was made by accused No. 1, the case would & not fall within the mischief of Section 500 or 501 of the Indian penal Code I particularly when accused No. 1 himself was an office-bearer (Vice-President I of the Corporation). 11. So far as accused Nos. 2 and 3 are concerned, Mr. Rajiv Sharma, supported the arguments of learned counsel for accused No. 1 and stated that there is nothing against accused Nos. 11. So far as accused Nos. 2 and 3 are concerned, Mr. Rajiv Sharma, supported the arguments of learned counsel for accused No. 1 and stated that there is nothing against accused Nos. 2 and 3 and they had published the news item with a view to show another side of the same coin and it was done in good faith. 12. Having heard the learned counsel for the parties, in any view, it cannot be said that by recording an order of acquittal, any illegality can be said to have been committed by the Judicial Magistrate. Certain facts are not in dispute. The complainant was an office-bearer of the Union. Similarly, accused No. 1 was also an office-bearer. Obviously, in these circumstances, accused No. 1 was also vitally interested in proper administration and working of the Corporation. No doubt, the case of the complainant was that derogatory statement was made by accused No. 1 to the effect that priority was given to truck owners of Bilaspur area but the said fact was admitted even by the complainant himself in his deposition. It has also come on record that the complainant raised voice against such priority and he had to pay price for it. If in the light of these circumstances, the learned Magistrate thought if fit not to convict the accused in absence of independent and reliable evidence, it cannot be said that by coming to such a conclusion, he has acted contrary to law. For acquitting accused No.1, the learned Magistrate has recorded reasons in paragraph 11 of the judgment and for accused Nos. 2 and 3 in paragraph 12 thereof. In my view, such an approach can be said to be legal, valid and in accordance with law and i see no infirmity therein. 13. For the foregoing reasons, I see no illegality in the order of acquittal recorded by the learned Judicial Magistrate. The appeal deserves to be dismissed and is, accordingly, dismissed.