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2001 DIGILAW 828 (PAT)

Ashok Mitra v. State Of Bihar

2001-09-04

PRABHAT KUMAR SINHA

body2001
Judgment PRABHAT KUMAR SINHA, J. 1. This is an application under Section 482 of the Code of Criminal procedure ("the Code in short) preferred by Ashok Mitra, Director-cum-Publisher, Maya Magazine and others praying therein to quash the entire proceeding in Complaint Case. No. 38(c) of 1997 as well order dated 28.1.1997 whereby and whereunder the petitioners had been summoned to face the trial for offences punishable under Sections 500 and 501 of the Indian Penal Code. 2. The complaint aforesaid was filed by Opposite Party No. 2. Sri Nand Lal Singh, an Advocate of this Court against publication of an article, titled as "Prashikshan Ka Virodh Kyon ?", in the magazine "Maya" in its issue dated 15.1.1997 in which, according to the complaint petition, certain defamatory comments were made against the lawyers as whole. After enquiry into the matter the learned Magistrate, by the impugned order, summoned the petitioners to face trial in that case. 3. Before proceeding will the arguments of the learned counsels, the aforesaid article may first be looked into. Obviously the objection of the complainant and his witnesses was towards the first page of the article. The first page of the article noted that earlier lawyers were said to have a pocket in the back side of their black gown in which their clients, after hearing of the case, used to put some money as fee of the counsel and whatever amount was given, they used to be satisfied with that but since then the time has changed and so has the priorities of the lawyers whose demand of fees has replaced the pocket behind the gown. It had also been mentioned in the article that fees of a lawyer was fixed by the Court but lawyers realised ten to thousand times more than the amount so fixed which ultimately resulted in diminishing of the prestige of the profession in the society It had also been stated in the article that the profession of advocates was the only profession in which no specific qualification, except a degree of Bachelor of Art or Bachelor of Law, was required with the result that any person could join practice after obtaining the degree if he could not find a job elsewhere. It had also mentioned that a section of the profession thereafter coveted to earn money misusing the authority of the black coat. It had also mentioned that a section of the profession thereafter coveted to earn money misusing the authority of the black coat. It was also noted that perhaps because of that if was said about the profession that "all misfits, fits into law". 4. Having made these comments this article proceeded to say that the concerned authorities such as Bar Council of India, Ministry of Law to the Government of India also got so worried about such developing trends that ultimately proposal came that students of law after having completed three years Course of Law should necessarily undergo training under a senior lawyer, and only after that they should be granted licence to practice law. There is, thereafter, academic discussion of the utility or otherwise of such a proposal. 5. The complainant does not appear to have objection to the subsequent portions of the article but as per complaint, exception has been taken to the quotation "all misfits, fits into law claiming that several meritorious person had embraced this profession gladly and several persons joined this professions after resigning from class one services like Indian Administrative Service, Indian Police Service as well the Bank Service, hence the aforesaid quotation was defamatory. As per para 7 of the complaint, such action of the accused persons was highly objectionable and shocking as being slur hurled by the accused persons upon this profession as they had deliberately and intentionally attempted to denigrate the status of the advocates, including that of the judiciary. 6. The main contention of the learned counsel for the petitioners is that an offence as aforesaid could be committed only if the alleged defamatory statement referred to a determinate or identifiable section/class including that of the lawyers but if the alleged statement did not refer to such a class or section, no offence was made out. Learned counsel in this regard has based the arguments on Explanation 2 of section 499 of the Indian Penal Code which defines defamation Explanation-2 explains that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. 7. Learned counsel in this regard has based the arguments on Explanation 2 of section 499 of the Indian Penal Code which defines defamation Explanation-2 explains that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. 7. To augment the arguments the learned counsel for the petitioners has relied upon the following decisions : (i) Decision of the Supreme Court in the case of G. Narasimban and others V/s. T.V. Chokkappa, AIR 1972 SC 2609 , (ii) decision of Gujarat High Court in the case of Narottamdas L. Shah V/s. Patel Magambhai Revabhai and another, 1984 Cr LJ 1790, and (iii) decision of Kerala High Court in the case of M.P. Narayana Pillai and others V/s. M.P. Chacko and another, 1986 Cr LJ 2002. 8. Confronted with the postulation of law as presented by the learned counsel for the petitioners the learned Additional Public Prosecutor submitted that the quotation referred to in the article in question was indeed defamatory and should have been avoided, but also agreed that the decisions as aforesaid did not favour the prayer to quash the impugned order. Learned counsel for the complainant/opposite party No. 2 did not place before this Court any decision contrary to the aforesaid, but submitted that the article was defamatory which should, and could, have been avoided otherwise that would give licence to any individual to denigrate any profession. 9. Coming to the legal aspect of the matter, Section 499 with explanation 2 of the Indian Penal Code makes it clear that such statement or imputation if made or published by a person is defamation if that statement or imputation is made concerning a company or an association or collection of persons as such. In other words, the company or association or collection of persons, therefore, must be identifiable and a determinate class. If that is not so, the allegations would not be defamation as defined under Section 499 of the Indian Penal Code. 10. Sub-section (1) of Section 199 runs as follows : "199(1)No Magistrate shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved of such offence ..." 11. 10. Sub-section (1) of Section 199 runs as follows : "199(1)No Magistrate shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved of such offence ..." 11. This is an exception to the general rule that a case for commission of a criminal offence can be instituted by any person. Under this provision it has been made clear that the complaint in that regard must be made by some persons aggrieved by the offence. Therefore, a person who claims, in individual capacity or being a member of such class or section, that he or a particular class or section of which he is a member was aggrieved by such imputation, verbal or published, must be a person, class or section which could be identifiable as such. If the offence has not been committed against any identifiable or determinate body, but against a class as whole, no offence of defamation is committed. 12. Now coming to the decisions relied upon by the learned counsel for the petitioners, in the case of G. Narasimhan and other, V/s. T.V. Chokkappa, (Supra) the facts were that in a conference organised by an organisation Dravide Kazhagam a resolution was passed by the conference to the effect that it should not be made an offence for a persons wife to desire another man. Thereafter, news item was published in the news paper Hindu and other papers stating therein that the conference had passed a resolution requesting the Government to take suitable steps to see that coveting another mans wife was not made an offence under the Indian Penal Code. That was objected to by the complainant describing himself to be an important member of Dravida Kazhagam stating that the resolution was passed in order to achieve total emancipation of women but the news article was published in distorted from giving a colour that the resolution supported adultery. That was objected to by the complainant describing himself to be an important member of Dravida Kazhagam stating that the resolution was passed in order to achieve total emancipation of women but the news article was published in distorted from giving a colour that the resolution supported adultery. Their lordships of the Supreme Court while considering the matter held that the resolution was not passed by any particular organisation but by a conference attended by a large number of person, not identifiable, and that the complaint therefore, was unsustainable since the news item in question did not mention the respondent nor did it contain any defamatory imputation against him individually or against a determinable and identifiable body when the publication was considered with reference to Explanation 2 of Section 499 of the Penal Code. It was also observed that such offence was committed only when a particular group of persons had been defamed as distinguished from the rest of the community. It was held that in such a case the question to be considered was as to which was the class or body in respect of which defamatory words were used and whether that body was a definite and an identifiable body or class so that the imputations in question could be said to relate to its individual components enabling an individual member of it to maintain a complaint. It was noted that in that complaint there was no grievance that Dravide Kazhagam had suffered injury in reputation or otherwise by alleged distortion in the news publication. The entire body of the persons who had been attending the conference could not be said to be a determinate body or identifiable body. In that view of the matter the order of the High Court was set aside and the appeals were allowed. 13. Almost similar situation arose in the case of Narottamdas L. Shah v. Patel Maganbhai Revabhai, (Supra) decided by Gujarat High Court. There was a Saryagraha by advocates. An editorial in a news-paper critically examined as to whether it behove to the lawyers as a class to resort to strike in which article the lawyers, inter alia, were described as "Kajia Dalai" i.e. Dispute Brokers. A complaint for defamation was brought against the editor of the news paper concerned. There was a Saryagraha by advocates. An editorial in a news-paper critically examined as to whether it behove to the lawyers as a class to resort to strike in which article the lawyers, inter alia, were described as "Kajia Dalai" i.e. Dispute Brokers. A complaint for defamation was brought against the editor of the news paper concerned. His lordship of the Gujarat High Court held that even according to the complainant the editorial did not refer to him personally or to any other individual but referred to the lawyers as a class and at the most, to the lawyer of Gujrat, ergo, the alleged defamation could not be imputed to a determinate or identifiable section /class of lawyers as distinguished from the. rest of the members of lawyers fraternity. In the facts and circumstances of the case it was found that expression "Kajia Dalai" was used in the editorial in relation to the lawyers as a class and was not referable to a determinate section of lawyers, namely, the lawyers who were participating in the agitation. 14. In that case his lordship also discussed the main thrust of the editorial which also mentioned that the lawyers had a place and position in the society, hence it did not behove to the legal profession to go on strike. Holding that editorial did not refer to any identifiable or person, the petition was allowed. 15. The case of M.P. Narayana Pillai v. M.P. Chacko, (Supra) also was decided on similar lines by the Kerala High Court. 16. What I find form a reading of the article in question is that the article essentially relates to the utility or otherwise of asking the lawyers after completion of three years course to take training under a senior advocate before they could be given licence to practice law. That indeed was an arguable academic point which was the main issue in the article. The part of the article that was complained against was against the lawyers a whole, instead of a determinate of an identifiable body of lawyers, i.e. any particular set of lawyers. 17. In view of aforesaid, it cannot be said that the offence of defamation was committed by the petitioners by publishing the aforesaid article in the magazine Maya. 18. The part of the article that was complained against was against the lawyers a whole, instead of a determinate of an identifiable body of lawyers, i.e. any particular set of lawyers. 17. In view of aforesaid, it cannot be said that the offence of defamation was committed by the petitioners by publishing the aforesaid article in the magazine Maya. 18. In view of that, this application succeeds and the criminal prosecution arising out of Compliant Case No. 38(c) of 1997 as well the impugned order dated 28.1.1997 are hereby quashed.