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2004 DIGILAW 526 (PAT)

Jagannath Thakur v. State Of Bihar

2004-05-10

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. The prayer in these two applications under Section 482 of the Code of Criminal Procedure is for quashing the order dated 18.10.2002 issuing summons to the petitioners in Complaint Case No. 1501 (C)/2002, for standing trial under Sections 500, 501 read with Section 34 of the Indian Penal Code. 2. A complaint case bearing No. 150 (0/2002 was filed by one Dr. Chandra Bhushan Verma, the opposite party No. 2 in both these applications, under Section 482 Cr PC. The two petitioners herein are said to be the President of the Teachers Association, Patna University and General Secretary of the Employees Association, Patna University : They have been impleaded as accused No. 4 and 7, respectively, in the aforesaid complaint case. The complainant/opposite party No. 2, in the complaint petition alleged that he was appointed as a Lecturer in the Vanijya Mahavidyalaya, Patna University, in 1999. The complaint further alleged that the complainant was also a Lawyer in the Civil Court at Patna. He devoted extra time in the Vanijya Mahavidyalaya, after his appointment in November, 1999 as a Lecture due to shortage of teacher in the subject of Commerce. This he did on an honorary basis. He did not get any salary from the College and provided free service. It was further alleged that accused 1, 2 and 3 published a news item in the paper Hindustan on 24.7.2002 in collusion and conspiracy with accused 4 to 8 against the character of the complainant. The article published on 24.7.2002 suggested that a lawyer was teaching Commerce to students without possessing qualifications for the same. The complaint stated that the complainant possessed the requisite degree for appointment as a Lecturer and held a Ph. D. degree in Commerce, after completing his Graduation from Patna University. It further alleged that the accused persons together published the article which was defamatory, stating that the complainant possessed no teaching experience and the University was silent on the issue as to how such person came to be appointed. The teachers union of the University have demanded the removal of the Principal and also threatened agitation against such appointment. The opposite party/complainant was appointed despite the fact that trained teachers were available in the subject in the University. The teachers union of the University have demanded the removal of the Principal and also threatened agitation against such appointment. The opposite party/complainant was appointed despite the fact that trained teachers were available in the subject in the University. Though for appointment of additional teacher sanction of the Vice- Chancellor was necessary but no such sanction was obtained for the appointment of the complainant. The Deputy General Secretary of the Teachers Association in-formed that a case of a lecturer was pending in the Civil Court which was being conducted by the complainant and that the complainant had been so appointed to keep him happy. The principal of the College had agreed that the complainant was not a lecturer of the College but was teaching in the College from the time of the previous Principal and that his services had only been extended. The complainant was alleged to have been appointed on 24th September, 2001. Taking serious exception to this appointment the Deputy General Secretary of the Teachers Association, Prof. Amar Nath Singh and General Secretary of the Employees Association of the University stated that such an appointment of an outsider as a lecturer had been made for the first time in the history of the Vanijya Mahavidyalaya. The Association had thus demanded removal of the Principal and had also threatened agitation. This would be the essentials of the publication giving rise to the complaint case. 3. The complaint case was filed on 30.7.2002. The statement of the complainant on S/A and enquiry followed and summons were issued by the Magistrate on 18.10.2002 the present petitioners besides others. The Magistrate was satisfied that the complaint, the evidence led before him and the publication prima facie constituted offences under Sections 500, 501 read with Section 34 of the Indian Penal Code. 4. The judicial process with regard to exercise of powers under Section 482 Cr PC, to quash the prosecution at the very threshold, needs no reiteration here. Law would enjoin that the prosecution be permitted to reach its conclusion, normally. Should there be exceptional circumstances as enumerated and reiterated by the repeated judicial pronouncements, the exercise of powers under Section 482 Cr PC would be judicial compulsion. An assessment at the very threshold under Section 482 Cr PC can hardly be a substitute for conclusion arrived at a full dressed trial. Should there be exceptional circumstances as enumerated and reiterated by the repeated judicial pronouncements, the exercise of powers under Section 482 Cr PC would be judicial compulsion. An assessment at the very threshold under Section 482 Cr PC can hardly be a substitute for conclusion arrived at a full dressed trial. It is in this back ground that the present matter would have to be considered. 5. The learning Counsel for the petitioner in Cr. Misc. No. 25111/2003 submitted that in the entire complaint or even the concerned news item there was no allegation or whisper against the present petitioner who was only the President of the Teachers Association of the Patna University. He further submitted that as the President of the Union he is not answerable for such or any news item that may come out in the any news paper being at tributed to the Union. Likewise, learned Counsel appearing for the petitioner in Cr. Misc. No. 25256/2003, the General Secretary of the Employees Association, submitted that the allegations were mere news paper clippings which per se did not constitute offence of defamation. It was further submitted that the said news item could not be said to be even prima facie defamatory. Lastly, in any event the publication was covered by the 4th Explanation to Section 499 and therefore did not amount to defamation. 6. Having heard learning Counsel for the petitioners and learned Counsel for the State, the Court finds it difficult to accept the contention of the petitioners at this stage of the prosecution that the news item does not disclose any material or allegation of defamation, which could become the subject matter of a duly constituted trial. A simple reading of the complaint petition suggests the imputation that the opposite party/complainant was an unqualified person. He had secured appointment as a lecture by dubious means. The Teachers Association and the Employees Association had threatened to agitate for his removal. He had been appointed despite the availability of regular teacher without the approval of the Vice-Chancellor. This appointment was made to keep him happy in lieu of the case being conducted by him for a Lecturer in Court. All procedures had been given a go-bye for the benefit of the complainant. The heading of the news item in bold clearly suggested that a lawyer was teaching students of commerce. This appointment was made to keep him happy in lieu of the case being conducted by him for a Lecturer in Court. All procedures had been given a go-bye for the benefit of the complainant. The heading of the news item in bold clearly suggested that a lawyer was teaching students of commerce. A bare reading of the complaint would thus reveal that the contents appear to prima facie contains allegations which can reasonably be the materials for a duly constituted trial to arrive at the correct purport meaning and scope thereof. The same was thus required to be adjudicated in a duly constituted trial. It is apparent that the news item casts imputations on the person in respect of whom the allegation was made and that it was likely to defame him. The ambit and scope for a proceeding for defamation under the penal law would be substantially different from a proceeding under the civil law for defamation. While proceedings for defamation under the civil law may give rise to a claim for damages, a proceeding for defamation under the penal law would necessarily entail a mens rea to harm the reputation or to have reason to believe that it would harm the reputation of the person against whom such imputations be made. Once these requirements are fulfilled the rest would be a subject matter for trial. 7. Section 199 of the Code of Criminal Procedure provides that no Court shall take cognizance of an offence punishable under Chapter 21 of the Penal Code except upon a complaint made by some person aggrieved by the offence. Section 199 (3) requires that such a complaint shall set forth the facts which constitute the offence alleged. The nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him. The present complaint fulfils the requirements of Section 199, Cr PC. 8. The learned Counsel for the petitioners submitted that the news item published was correct and was required to be published in public interest. Such a contention would most certainly constitute a defence and would be the subject matter of a regular trial. Reliance for the said purpose may be placed upon the judgment of the Supreme Court reported in AIR 1981 SC 1514 . Such a contention would most certainly constitute a defence and would be the subject matter of a regular trial. Reliance for the said purpose may be placed upon the judgment of the Supreme Court reported in AIR 1981 SC 1514 . Whether the news item was published in good faith and whether it was in the public interest, are all issues of fact which are required to be put forth and tested in a duly constituted trial. Several questions may arise with regard to the truthfulness and correctness of the news item. Was it intended to malign and scandalise the complainant had a free hand in the administration of the University was bestowed undue favours etc. Quite obviously these questions cannot be decided at this stage. The next submission of the learned Counsel of the petitioner in Cr. Misc. 25111/2003 that he simply being the President of the teachers Association and not having been attributed any statement or role in the complaint or the news item the petitioner has erroneously been summoned to face trial, also cannot stand scrutiny at this stage. The uttrerances are of the Teachers Union through an office bearer. At this stage it is premature to conclude that the petitioner as the President of the Union can disclaim and absolve total liability for the statements made or attributed to the Union. Were these statements irresponsible utterances of the General Secretary of the Teachers or were made by him after deliberations of the Association which includes its President, are all issues of the fact which can be considered in a duly constituted trial only. In so far as the petitioner of Cr. Misc. No. 25256/2003 is concerned, the news item specifically attributes the statements to him and therefore does contain materials to summon him to face trial in view of the finding herein above that the news item contained imputations for defamation prima facie and contained materials for a duly constituted trial to arrive at a decision thereupon in law. 9. Learned Counsel for the petitioner placed reliance upon a judgement of this Court reported in 1997 (1) East Cr C 271 in support of the proposition that mere publication of a news item in a news paper would not constitute the offence of defamation under the Penal Code. 9. Learned Counsel for the petitioner placed reliance upon a judgement of this Court reported in 1997 (1) East Cr C 271 in support of the proposition that mere publication of a news item in a news paper would not constitute the offence of defamation under the Penal Code. He submitted that the objectionable news item must attribute statement to the petitioner and the complainant must lead evidence also to show that the utterances were made by the said accused petitioner. The case in hand related to a news item where certain derogatory statements were made with regard to a caste in general and an individual of that caste had filed a complaint case that it lowered the dignity of the members of that community. The witnesses who were examined stated that they had no knowledge if the accused therein had made, the alleged utterances. In the present case, the allegations are not in general in nature. The allegations were specific in respect of an individual, the news item quoted the source of the allegation and the witnesses also supported the contents of the complaint. It cannot be disputed that the news item on being read by one and by all, could lower the prestige of the complainant. Moreover, in the aforesaid case relied upon, a contradiction had also been published. The facts of the judgment relied upon are substantially different and are of no relevance in the present case. As discussed above, in the facts of the present case the complaint has been filed under Section 199 Cr PC by a person fully competent to do so as a person aggrieved. 10. The learned Counsel for the petitioner next contended relying upon a judgment reported in 1997 Cr L Jr 4585 that the news item fell under the 4th explanation to Section 499 IPC and therefore did not constitute an offence. The said judgment relied upon was delivered on the basis that the complaint in the said case did not mention that due to the imputation, the prestige, image and reputation of the complainant had been lowered in the public estimation. The said judgment relied upon was delivered on the basis that the complaint in the said case did not mention that due to the imputation, the prestige, image and reputation of the complainant had been lowered in the public estimation. The Court thus proceeded to hold that in absence of the said averment in the complaint, with reference to the fact of the reputation of the complainant having been lowered down in the estimation of others, there was no sufficient ground made out for proceeding further by taking cognizance of the complaint, in view of Explanation 4 to Section 499 IPC. On the contrary in the present case the complaint specifically asserted that the publication had caused him great mental agony, distress and was against his personal character. It was intended to harm his reputation and affect his goodwill because the complainant was prestigious and qualified person. The defamatory language was used against him with a view to tarnishing his reputation. In view of the aforesaid pleadings as contained in the present complaint the aforesaid judgment is of no application to the facts of the present case. 11. It is apparent from the statements made in the present complaint that this Court at this stage under proceedings in Section 482 Cr PC cannot appreciate the evidence or scope of and meaning of the statements made in the complaint and the news item. Certain allegations have been made in the news item published, but whether these allegations do constitute defamation and whether it was made with the intention to defame the opposite party No. 2, are all matters to be considered by the Magistrate at a later stage. This Court, in a proceeding under Section 482, Cr PC cannot embark upon weighing the evidence and come to any conclusion to hold whether or not the allegations made in the complaint constitute an offence punishable under Section 500. It is settled law that a Court has to read the complaint as a whole and then reach the conclusion whether the allegations disclosed constitute materials for a trial. The learned Magistrate having come to the prima facie conclusion that the allegations might come under the definition of defamation and having thus taken cognizance, the matter does not call for any interference by this Court. 12. The learned Magistrate having come to the prima facie conclusion that the allegations might come under the definition of defamation and having thus taken cognizance, the matter does not call for any interference by this Court. 12. The cases set-up by the two petitioners in these applications under Section 482 Cr PC are either defences open to be taken or other steps at the time of framing of the charge at the trial. At this stage even before the substance of the accusations are to be stated to the accused under Section 251, Cr PC interference by this Court is uncalled for. 13. However, even if it be considered that the imputation is not per se defamatory, that by itself would not go to the advantage of the petitioner. The complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency. The petitioners therefore cannot contend at this stage that the order of issuance of summon is bad as the allegations were allegedly not per se defamatory. The Supreme Court in its judgment reported in 2001 (6) SCC 30 , on this reasoning while dealing with the issue, while dismissing an appeal held that if the Article was per se defamatory it would only relieve the complaint of the burden to establish that the publication of such imputation has lowered his estimation in the public. The only issue to be considered here is whether the uncontroverted allegations as made in the complaint prima facie establish the offence and whether is expedient and in the interest of justice to permit the prosecution to continue. The learned Magistrate having perused the complaint, examined witnesses on oath appears to have been satisfied that a prima facie case for a duly constituted trial was made out. It cannot be said at this preliminary stage that the order of the Magistrate is vitiated in law. This Court upon perusal of the complaint and the concerned news item sees no reason to arrive at a different conclusion. 14. In the aforesaid facts and circumstances and for the reasons discussed herein above this Court finds no reason to interfere with the order dated 18.10.2002 issuing summons to the petitioners. Cr. Misc. No. 25111 of 2003 and Cr. Misc. No. 25256 of 2003 are therefore dismissed.