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2006 DIGILAW 3165 (MAD)

P. Jainulabidin & Another v. Mohamed Syed Arif

2006-11-21

R.REGUPATHI

body2006
Judgment :- (Prayer:- Criminal Original Petition filed under Section 482 of the Cr.P.C. to call for the records relating to STR 1423 of 2002 on the file of Judicial Magistrate No. II, Karaikal and quash the same.) 1. The petitioners are Publisher and Editor of a Weekly Magazine. A Private Complaint for an offence punishable under Section 500, I.P.C. was taken on file by Judicial Magistrate No.II, Karaikal. The allegation and averments made in the Complaint are that the complainant is associated with the Tamil Nadu Development Foundation Trust, which carries out various social and educational activities for the promotion of Muslims. A publication has been made in the weekly on 06.04.2001 in which the general public has been cautioned regarding a fraudulent collection of money. It has been stated in the news item that some people are coming around to sell sticker of Babri Masjid for Rs.2/- to every door steps. Stickers are being sold under the guise of collecting fund for Babri Masjid case, Gujarat relief fund and for conducting conference for promoting Islam and therefore the people must be beware of and must be careful about those fraudulent groups. 2. It has been claimed in the Complaint that this news item has been directed only against the complainant and that there is no justification for describing the sale of the stickers as fraudulent and those who sell the same as frauds. Such publication is a defamatory imputation and it refers only to the complainant and sought for prosecution of the Publisher and the Editor viz., the petitioners herein. 3. Learned counsel for the petitioners submits that on perusal of the publication, nowhere in the news item, any specific defamatory imputation has been made against any particular person. Even if news item is taken into consideration as a whole, nobody has been named. A caution has been given to the general public that such type of sale should not be encouraged. On perusal of the allegation and averments made, the offence under Section 500, I.P.C. (Defamation) is not made out and sought for quashing the proceedings. 4. Per contra, the respondent/complainant claimed in his Complaint that he is the person who has distributed such stickers and he is entitled to do so. On perusal of the allegation and averments made, the offence under Section 500, I.P.C. (Defamation) is not made out and sought for quashing the proceedings. 4. Per contra, the respondent/complainant claimed in his Complaint that he is the person who has distributed such stickers and he is entitled to do so. By way of publication like this, the petitioners cannot prevent him and because of the publication, the complainant has been defamed and that is the reason why a Private Complaint for punishing such persons under Section 500, I.P.C. has been made. 5. I have perused the materials available on record and heard the submissions made. 6. Babri Masjid was demolished on 6th December, 1992. After the demolition, several untoward incidents took place in the country. Leaders of various political parties and religious group pacified the general public and requested them to forget this incident. In spite of that, some groups and anti-social elements are indulging in violence every year on the date of demolition. Elaborate security arrangements are made by the Government with huge expenditure in Airports, Railway Stations and Public places and it is a continuing affair. It has caused great hardship to general public. Public properties are damaged and set fire. Under such circumstances, a stamp with the picture of "Babri Masjid" containing the words "LEST WE FORGET" "TAMIL" was printed. In the Complaint preferred, the complainant has got audacity to admit that he is the person who has circulated such stamps to the public. The petitioners, who are editor and publisher, coming to know about this, have given a caution in their publication only in the public interest. Even in the publication, no names have been referred to, particularly the name of the complainant. The press has played an excellent laudable role and they must be appreciated. The good intention entertained is only to defuse the burning issue, which is a continuing affair. 7. The action of the petitioner will be exempted from defamation, which reads as per Section 499 as follows: "Ninth Exception Imputation made in good faith by person for protection of his or other's interests — It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or for any other person, or for the public good. Tenth Exception — Caution intended for good of person to whom conveyed or for public good — It is not defamation to convey a caution in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good," 8. In a case reported in Pepsi Foods Ltd v. Special Judicial Magistrate and Others, AIR 1998 SC 128 it has been held by the Supreme Court as follows: "Para 28 Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the Complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 9. On a perusal of the Complaint, I find, it is a fit case that the complainant should be proceeded with not only for printing and circulating such stamps but for the provocative averments made in the petition under sub-section (1) of Section 153-A of I.P.C., which reads as follows: "Whoever, — (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is pre judicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility. shall be punished with imprisonment which may extend to three years or with fine or with both. 10. It is unfortunate that the learned Magistrate mechanically without application of mind taken the Complaint on file and issued process to the petitioners On a perusal of the Private Complaint and other materials available on record. I do not find any defamatory imputation has been made against the complainant and therefore, the proceedings against the petitioners are quashed. Petition is ordered accordingly. Consequently Crl.M.P. Nos.2612/2003 and 9304/2004 are closed.