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2002 DIGILAW 1198 (AP)

A. T. Jayanthi v. State Of A. P.

2002-10-04

T.CH.SURYA RAO

body2002
T. SURYA RAO, J. ( 1 ) THE revision petitioners assail the order dated 10. 07. 2000 passed by the learned Metropolitan Sessions Judge, Hyderabad, in Crl. M. P. No. 1197 of 1999 in C. C. No. 1 of 1997. The revision petitioners are the accused in C. C. No. 1 of 1997. The Public Prosecutor having been authorised by the State laid the complaint against the accused for the offences punishable under Sections 120-B, 500 and 501 of the Indian Penal Code (for brevity the IPC ). They are the Editor, Publisher, and Reporter, respectively of the Newspaper "deccan Chronicle". ( 2 ) A news items was published in English Daily Newspaper "deccan Chronicle" on 24. 10. 1996 under the caption "2 IAS officers in Rs. 4 lakh oil scam". One Sri S. Anwar, an IAS Officer and working as Principal Secretary to Government of Andhra Pradesh for Panchayat Raj and Rural Development is a public servant. Earlier he worked as the Commissioner and Director of Municipal Administration, Government of Andhra of Pradesh, from 10. 04. 1989 to 14. 04. 1990. He is a senior IAS officer with unquestionable integrity and honesty and zeal for public service. He held various responsible positions in the State of Andhra Pradesh and, therefore, is a distinguished and respectable individual not only in the administrative cadre but also in the society. He received a letter dated 23. 01. 1990 from Andhra Pradesh Small Scale Industrial Development Corporation Limited (for brevity apssidc ) requesting him to direct the municipalities under his control to place the orders for purchase of Maleria Larvicidal Oil (M. L. Oil ). M/s. Anand Cottage Industry, Gudivada, is a unit registered with APSSIDC for the supply of M. L. Oil. The object of the Government of Andhra Pradesh is to encourage, promote and develop small scale industries into a viable and self-sufficient units and in that view formulated a policy to market certain products manufactured by such units through APSSIDC. Pursuant to the letter received from APSSIDC, the Commissioner issued a circular in L. Dis. No. 50733/89. G2 dated 03. 02. 1990 to all the Municipal Commissioners in the State informing them that M. L. Oil is available with APSSIDC and they may procure the same from APSSIDC by placing orders directly subject to their needs. Pursuant to the letter received from APSSIDC, the Commissioner issued a circular in L. Dis. No. 50733/89. G2 dated 03. 02. 1990 to all the Municipal Commissioners in the State informing them that M. L. Oil is available with APSSIDC and they may procure the same from APSSIDC by placing orders directly subject to their needs. In regard to that letter, the Deccan Chronicle English Daily published a news item projecting him as a corrupt official and misused the public office by indulging gross irregularities and favouritism in having registered the bogus cottage industry and securing the purchase orders from all municipalities to their product, namely, M. L. Oil through APSSIDC. The news item published is a defamatory. ( 3 ) THE accused as well as the Editor-in-Chief, by name, Sri M. J. Akbar, conspired together to achieve their common object to increase the circulation of the newspaper still more and in order to establish that their paper is the only newspaper publishing sensational news unearthing the truth have published the impugned publication with all allegations against the Commissioner and other IAS officers to malign the character and image of the public servants. Since the newspapers is being published simultaneously from Hyderabad, Vijayawada, Visakhapatnam and Rajhmundry, the news was spread, the well wishers of the public servants started enquiring him about the publication. Thus, the publication cast a serious reflection on the moral as well as official and intellectual character of the public servant. The said publication is opposed to all norms of good and fair journalism and was made in most irresponsible and unethical manner. Therefore, per se it is defamatory. The Government of Andhra Pradesh, therefore, deemed it just and necessary to launch prosecution against all the accused and directed its Public Prosecutor to file the complaint under Section 199 (2) of the Code of Criminal Procedure (for brevity the Code ) for the offence of defamation. Accordingly, the Public Prosecutor laid the complaint. ( 4 ) THE complaint was taken on file by the learned Metropolitan Sessions Judge, Hyderabad. Pursuant to the summonses issued, the accused appeared before the Court. It appears that the first accused, the Editor-in-Chief, filed a petition before this Court for quashing the proceedings initiated against him. Accordingly, this Court in Criminal Petition No. 3094 of 1997 quashed the proceedings as against A. 1. Pursuant to the summonses issued, the accused appeared before the Court. It appears that the first accused, the Editor-in-Chief, filed a petition before this Court for quashing the proceedings initiated against him. Accordingly, this Court in Criminal Petition No. 3094 of 1997 quashed the proceedings as against A. 1. A. 2 to A. 4, who are the present revision petitioners, filed a petition under Section 245 (2) read with 237 of the Code seeking discharge. Inter alia, in that application it is averred that under a letter bearing No. 680/vc. B1/95-6 dated 01. 10. 1996 addressed by Sri K. V. Natarajan, IAS, Vigilance Commissioner, to the Chief Secretary reporting that an enquiry was conducted by the Vigilance Commission on a complaint-petition dated 21. 04. 1992 by Sri P. Venkateshwara Rao, M. L. A. in regard to the supply of M. L. Oil by M/s. Anand Cottage Industry, Gudivada, and the enquiry established that M/s. Anand Cottage Industry was a bogus unit and the product, namely, M. L. Oil did not figure in the list of products approved under the G. O. Ms. Mo. 181 dated 09. 05. 1985 and the price paid to the said Anand Cottage Industry is far higher than the price of the standard product marketed by the Indian Oil Corporation and, therefore, the Vigilance Commissioner indicted Sri T. Gopala Rao, IAS and Sri S. Anwar, IAS in that regard. Therefore, the news item is nothing but a reproduction of the gist of the enquiry report dated 31. 12. 1992 whereunder the Vigilance Commissioner proposed disciplinary action against the public servants. It cannot, therefore, be said that the petitioners published the news item with mala fide intention. There is no triable case so as to subject the petitioners to any trial and, therefore, they are entitled to be discharged under Section 245 (2) of the Code. ( 5 ) THAT application was resisted by filing a counter by the complainant. It is mentioned, inter alia, in the counter that the Chief Secretary to Government of Andhra Pradesh, through his Memo No. 632/sc-D/94-23 dated 19. 05. ( 5 ) THAT application was resisted by filing a counter by the complainant. It is mentioned, inter alia, in the counter that the Chief Secretary to Government of Andhra Pradesh, through his Memo No. 632/sc-D/94-23 dated 19. 05. 1997 was pleased to drop further action against the two IAS officers and, therefore, in view of the same the recommendations of the Vigilance Commissioner do not hold water; and that the petitioner are put to strict proof of the allegations made in the news item to justify their act of publication of defamatory news. Further, the enquiry report discloses the irregularities committed by certain officers by naming them and the name of the public servant-Sri S. Anwar, IAS was not included. The norms of good and fair journalism require the publishers before the publication of any news item maligning the character and reputation of a person to consult and seek his clarification about the information which they want to publish. The complaint and documents annexed therewith sufficiently establish the prima facie case against the petitioners. Hence, the application seeking discharge is got to be dismissed. ( 6 ) AFTER having heard on either side, as aforesaid, under the impugned order, the learned Metropolitan Sessions Judge dismissed the said petition. While dismissing the said petition, it was observed by the learned Judge that the complainant had not adduced any evidence so as to prove a prima facie case to frame the charge against the accused and that stage was not yet reached; and that having regard to the fact that the Government exempted IAS Officers, the accused could not rely on the report of the enquiry commission and publish the news item; and that the news item being per se defamatory, the question whether it would come under the exceptions to Section 499 of the IPC or not has to be seen at the time of trial only and, therefore, the accused at that stage cannot be discharged. ( 7 ) THE whole process of reasoning is contained in para 8 of the impugned order. The view that the complainant had not adduced any evidence so as to prove prima facie case to frame charges and that stage is not yet reached appears to be incorrect, having due regard to Section 245 of the Code. For brevity, Section 245 of the Code may be extracted hereunder thus:"245. The view that the complainant had not adduced any evidence so as to prove prima facie case to frame charges and that stage is not yet reached appears to be incorrect, having due regard to Section 245 of the Code. For brevity, Section 245 of the Code may be extracted hereunder thus:"245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. " ( 8 ) A perusal of the said section shows that it is in two parts. While sub-section (1) thereof shows that upon taking all the evidence referred to under Section 244 of the Code, if the Magistrate considers for reasons to be recorded that no case against the accused has been made out which if unrebutted would warrant his conviction, the Magistrate shall discharge. Sub-section (2) thereof shows that nothing in sub-section (1) would prevent if the Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Under Section 244 of the Code in all cases instituted otherwise than on police report, namely on private complaint, where the warrant procedure is to be adopted, after the accused appears before the Court, the Court shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. A combined reading of Section 244 and sub-section (1) of Section 245 shows apparently that so soon after the appearance of the accused in a private complaint case, where the accused shall be tried by adopting private warrant procedure, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced by the complainant and if that evidence is considered and it does not disclose any grounds which warrant conviction of the accused, the Magistrate shall discharge him. However, sub-section (2) of Section 245 specifically says that the provisions of sub-section (1) shall not be deemed to prevent the Court from discharging the accused at any previous stage. The previous stage envisaged under sub-section (2) is obviously the stage before the Magistrate proceeding to hear the prosecution and taking all such evidence as may be produced by the complainant in support of his case. In my considered view, therefore, Sections 244 and 245 are to be read together and in doing so, sub-section (2) of Section 245 cannot be isolated from consideration. If both these Sections are read together in a holistic vision, obviously it is open to the Magistrate to discharge the accused at a stage prior to his proceeding to hear the prosecution and taking all such evidence as may be produced by the complainant. This clear legal position has not been considered by the learned Metropolitan Sessions Judge and he was of the erroneous view that the complainant since has not produced any evidence to prove prima facie case and that stage has not yet been reached. That manifests emphatically that the learned Judge refused to consider the request of the petitioners for discharge only having been of the view that he should hear the complainant and proceed to take all such evidence proposed to be produced by the complainant and then only he can consider the request of the petitioners for discharge under sub-section (1) of Section 245 of the Code. The learned Judge has not considered the effect of sub-section (2) thereof. On that ground alone, the impugned order is liable to be set aside. ( 9 ) MUCH arguments have been addressed before me by the learned counsel appearing for the revision petitioners on the merits of the case so as to drive home the point that the news item having been based on the report of the Vigilance Commissioner and it cannot be said that the revision petitioners have committed the offence punishable under Section 500 of the IPC having regard to the exceptions incorporated under Section 499 of the IPC. In support of the said contention, the learned counsel seeks to place reliance upon the report of the Vigilance Commissioner. In support of the said contention, the learned counsel seeks to place reliance upon the report of the Vigilance Commissioner. Even a mere perusal of the new items published in Deccan Chronicle shows clearly that item is nothing but the findings of the Vigilance Commissioner, since the news item has been annexed to the complaint filed against the petitioners and is requested to be read as part and parcel of the complaint. At this stage, to consider whether there is a prima facie case or not against the accused, the Court is entitled to look into the news item. There is no need to consider extraneous evidence than the news item annexed to the complaint. ( 10 ) IT is now well settled that at the stage of considering the case for the purpose of framing a charge, the Court is entitled to look into the allegations made in the complaint; sworn statements, if any, recorded of the complainant and his witnesses; and the documents, if any, annexed to the complaint; for the purpose of deciding whether a prima facie case is made out to proceed against the accused or not. The fact that the Government of Andhra Pradesh has dropped the proceedings against the public servants is against a subject matter of enquiry and proof. If the alleged news item, which per se is defamatory according to the complainant, is on the face of it based on the report of the Vigilance Commissioner and the same can be discerned without resorting to the process of conducting an enquiry by looking at extraneous evidence. I fail to understand how the Court is precluded from considering the same. If for any reason it requires that an enquiry is to be conducted and evidence is to be adduced, there is every point in the reasoning that it requires a detailed enquiry in that process and the Court cannot undertake at the time of considering the case prima facie for the purpose of framing a charge. In my considered view, on mere perusal of the alleged defamatory statement, if the Court is of the view that it attracts any of the exceptions incorporated under Section 499 of the IPC, the Court is absolutely within its limits to consider the same so as to hold whether there is a prima facie case or not. In my considered view, on mere perusal of the alleged defamatory statement, if the Court is of the view that it attracts any of the exceptions incorporated under Section 499 of the IPC, the Court is absolutely within its limits to consider the same so as to hold whether there is a prima facie case or not. Inasmuch as the learned Metropolitan Sessions Judge refused to consider the request of the petitioners on different considerations, the merits of the case as sought to be contended by the learned counsel appearing for the revision petitioners are not expedient here to be considered since no finding in that regard has been given by him. ( 11 ) FOR the reasons hereinabove discussed, I am unable to concur with the view expressed by the learned Metropolitan Sessions Judge that it requires the process of enquiry having regard to the fact that the learned Judge refused to consider all these things on the sole premise that the complainant has not adduced any evidence and that stage has not yet been reached and it is not open to discharge the accused while considering sub-section (1) of Section 245 of the Code alone. Therefore, the impugned order is liable to be set aside. ( 12 ) IN the result, the Criminal Revision Case is allowed and the impugned order is hereby set aside. Consequently, the matter is remitted to the Court below for fresh consideration in the light of the observations made by this Court inter alia in the order supra and to dispose of the same in accordance with law.