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2006 DIGILAW 2275 (DEL)

POONAM SAXENA v. S. N. SINGH

2006-12-07

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THESE three petitions under Section 482 of the Code of Criminal procedure, 1973 (hereinafter referred to as ?the Code?) are directed against the orders of summoning dated 22. 10. 2003 and 15. 07. 2004 By virtue of the former order accused Nos. 1-8 were summoned and accused Nos. 10 and 11 were discharged. By virtue of the order dated 15. 07. 2004 accused No. 9 has been summoned on the same basis on which accused Nos. 1-8 were summoned. ( 2 ) IT is reported that accused No. 1 has since been died and, therefore, proceedings against him have abated. These petitions concern only accused Nos. 2-9. ( 3 ) THE accused Nos. 2-9, which include both the petitioners and some respondents in these petitions, have been summoned in relation to the offence under Section 499/500 IPC read with Section 34/120-B IPC. The starting point of this case is the publication of an item in the Delhi Edition of the newspaper pioneer dated 26. 08. 1997. The said item was titled ?suspended professor refutes bribe charge?. Various allegations are said to have been made against professor S. N. Singh, who is the complainant in this case. The allegations were of bribery as well as of moral turpitude. It has been stated in the said newspaper report that nine faculty members of the Law Faculty of Delhi university had alleged that Professor S. N. Singh had siphoned money during admissions in the last three years. There are certain other allegations with regard to the conduct of Dr. Singh involving a girl student. There is also an allegation that he demanded a transistor from a student for enhancing his marks in the LLB examination. A reading of the newspaper item, a copy of which is at Page 29 of the paper book, indicates that the allegations contained against dr. Singh are based on a purported press statement said to have been issued by the accused Nos. 1-9. It is further indicated in the newspaper item that the press statement was signed by these nine persons. ( 4 ) THE learned counsel for the petitioners as well as some of the respondents, who represent all the accused persons, have indicated that the summoning order is bad because there is nothing to connect the accused Nos. 1-9 with the allegations contained in the news item. ( 4 ) THE learned counsel for the petitioners as well as some of the respondents, who represent all the accused persons, have indicated that the summoning order is bad because there is nothing to connect the accused Nos. 1-9 with the allegations contained in the news item. They made submissions in the light of the fact that no signed press statement has been brought to light. The mere allegation in the newspaper that these persons had levelled allegations against Professor Singh is not sufficient, particularly, when the newspaper item specifically indicates that a singed statement was issued by these accused persons. The learned counsel appearing on behalf of the accused also pointed out that at the pre-summoning stage one Sh. Om Prakash Gupta, who was the legal representative of the Pioneer, was examined as CW4. In the course of his examination he has not stated as to whether there was any signed statement or not. Nor has he produced any signed statement which must have been in the possession of the newspaper if the newspaper item is to be believed. All that the said Om Prakash Gupta has stated in his pre-summoning evidence, as much as is relevant for this case, is that ?the aforesaid report was published on the report given by Ms Mani Pandey?. An examination of the newspaper item would show that the name of the reporter is not disclosed nor is the date disclosed as to when the report was submitted. The only reference is to ?staff reporter, New delhi?. ( 5 ) THE learned counsel appearing on behalf of the complainant submitted that there is enough material in the complaint and in the newspaper item as well as in the statements gathered at the pre-summoning stage to summon the accused and that the orders passed by the learned Metropolitan Magistrate, summoning the accused, does not suffer from any infirmity. He submits that a reading of the newspaper item indicates that allegations against the complainant were made. The same were published in the newspaper and were read by various persons. The learned counsel submitted that CW2 and CW3 have indicated that they read the newspaper item and their opinion of Professor S. N. Singh was altered because of the imputations contained in the said item. The same were published in the newspaper and were read by various persons. The learned counsel submitted that CW2 and CW3 have indicated that they read the newspaper item and their opinion of Professor S. N. Singh was altered because of the imputations contained in the said item. Therefore, according to the learned counsel for the complainant, this was a clear-cut case for summoning the accused and they were rightly summoned. He, however, submitted that there is one error in the summoning order and that is that accused Nos. 10-11 being the printer/publisher and the editor of the Pioneer, Delhi Edition were discharged when they also ought to have been summoned, this being a case of per se defamation. ( 6 ) AFTER having considered the arguments advanced by the counsel for the parties as well as the material on record, I feel that insofar as the question of the accused Nos. 10 and 11 being discharged is concerned, I am in agreement with the submission made by the learned counsel for the complainant that they ought not to have been discharged when the newspaper item was clearly carried out in the newspaper and it contained per se defamatory imputations. It is not only the person who makes the remarks but also the person who publishes it, that is liable and, therefore, prima facie, accused Nos. 10 and 11 ought to have been summoned. ( 7 ) THE next aspect of the matter is as to whether the summoning of accused Nos. 2-9 was proper in law. It goes without saying that the Magistrate, when he examines a complaint and sets the matter for pre-summoning evidence, is required to examine the material on record and to establish a link between the offence and the probable offenders. If that link is established, prima facie, then the offenders may be summoned. In the present case the only link between the alleged offenders ( accused Nos. 2-9) and the offence is the alleged signed press statement which is referred to in the news item. But, that link is missing inasmuch as the same has not been produced either by the complainant or by CW4, who was summoned at the pre-summoning stage as a witness. 2-9) and the offence is the alleged signed press statement which is referred to in the news item. But, that link is missing inasmuch as the same has not been produced either by the complainant or by CW4, who was summoned at the pre-summoning stage as a witness. At this stage, it is also not possible to shut out the case in its entirety by saying that since such a statement has not been produced, therefore, such a statement does not exist. The learned counsel for the complainant has urged strongly that the signed press statement exists. In these circumstances, I feel that it would be appropriate that till such time the missing link is established, at least prima facie, the orders of summoning, insofar as the accused Nos. 2-9 are concerned, ought to be set aside. The matter, in my view, ought to be remanded to the Metropolitan Magistrate at the pre-summoning stage to afford the complainant an opportunity for production of said signed press statement. It is abundantly clear that if such a signed press statement is brought on record, then the framing of charges under Section 499/500 IPC would be appropriate. At the same time, I find that it would be difficult to issue summons in the absence of such a signed press statement. ( 8 ) IN view of the foregoing discussion, the impugned orders are set aside. The matter is remanded to the pre-summoning stage. The complainant is to be afforded further opportunity to produce additional pre-summoning evidence, as indicated above. Thereafter, the learned Metropolitan Magistrate shall apply his mind and pass orders in accordance with law. These petitions stand disposed of.