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2009 DIGILAW 360 (GUJ)

Deepal Trivedee v. State of Gujarat

2009-05-08

A.L.DAVE

body2009
Judgment A.L. Dave, J.—This petition is preferred under Section 482 of the Code of Criminal Procedure, 1973 for quashment of a complaint lodged by Public Prosecutor in the City Sessions Court, Ahmedabad, bearing Criminal Case No. 3/2001, accusing the present petitioners of the offences punishable under Sections 500, 501, 502 read with Sections 114 & 34 of the Indian Penal Code. 2. The event giving rise to the complaint was an item published in Ahmedabad Edition of English daily newspaper “Asian Age”, on 10.10.2000, which read as under :— “Sudarshan for RSS bureaucrat in Gujarat. By Deepal Trevedie. Gandhinagar, Oct. 9: In a move clearly allegorizing the RSS interference in Gujarat, chief minister Keshubhai Patel has been reportedly asked by the Sangh Parivar to bypass the seniority of five IAS officers and appoint a pro-RSS man as the Chief Secretary. This, the RSS feels will help in healing the party image which has suffered a major setback following the debacle in the recently concluded local bodies’ elections. Top RSS sources claimed that RSS chief K.S. Sudarshan called up the chief minister personally to recommend this pro-RSS IAS officer’s case. As a sequel to it, Mr. Patel called upon Gujarat and Maharashtra RSS incharge senior Sangh leader Madhu Kulkarni here on Monday and discussed the issue. The RSS has told the Chief Minister that they want the present chief secretary Mr. L.N.S. Mukundan to be removed and Dr. V.V.R. Subbarao to be made the chief secretary. Dr.Subbarao is believed to be close to RSS and is reported to have even called upon RSS chief in New Delhi recently. According to many senior bureaucrats of late Dr. Subbarao has been citing instances of his proximity to the RSS chief. It must be noted that Gujarat which is the only State where the BJP has an absolute majority in the Assembly and a solid RSS influence. Many bureaucrats have been queuing up to the RSS offices and shibirs believing that being in good books of the RSS translated into good postings. A top RSS source told The Asian Age on Monday night that the BJP’s image of giving good governance had failed to click with the people mainly because of bureaucratic hang ups. “Dr. Subbarao is our man and we are sure he will help in reviving our glory” But, Dr. Subbarao’s appointments come against the set norms for selection. A top RSS source told The Asian Age on Monday night that the BJP’s image of giving good governance had failed to click with the people mainly because of bureaucratic hang ups. “Dr. Subbarao is our man and we are sure he will help in reviving our glory” But, Dr. Subbarao’s appointments come against the set norms for selection. The chief secretary is normally the senior-most IAS Officer. However, in this case, there are five other ahead of Dr. Subbarao who will have been conveniently bypassed to accommodate the pro-RSS officer. The senior officers, Mr. R. Rambhadran, Mr. G. Subbarao, Mr. Ashok Bhatia, Mr. Fatehsinh Jasol and Mr. P.K. Das are all much senior to Dr. Subbarao. However, the RSS perceives that only the pro-RSS officer who is at present the home secretary of Gujarat can salvage the BJP from further go down in Gujarat. In the recently concluded district panchayat elections, the Congress grabbed 21 of the total 23 panchyats from the BJP. At taluka level the Congress captured more than 2302 out of 3848 of the seats.” 3. The said write-up was authored by Petitioner No. 1 Deepal Trivedee. Petitioner No. 2 is the Editor-in-Chief of the said Newspaper, headquartered at New Delhi, and Petitioner No. 3 is the Publisher. The petitioners are arraigned as accused in the complaint respectively. The case in the complaint is that by this write-up, Dr. Subba Rao, IAS Officer, then working with the State Government, was defamed and hence this complaint. The complaint was lodged by the Public Prosecutor, with the previous sanction of the State Government, as envisaged under Section 199(4) of CrPC. 4. The said complaint is sought to be quashed mainly on three counts, as canvassed by learned Senior Advocate Mr. Percy Kavina, appearing for the petitioners. 4.1.1 The first limb of the arguments is that there is no defamation of Mr. Subba Rao that can be culled out from the write-up in question. 4.1.2 The second limb of the arguments is that the requirement of Section 199 of CrPC is not fulfilled. If Mr. Subba Rao felt aggrieved by the write-up and felt that he is defamed, it was he, who could have lodged the complaint. Subba Rao that can be culled out from the write-up in question. 4.1.2 The second limb of the arguments is that the requirement of Section 199 of CrPC is not fulfilled. If Mr. Subba Rao felt aggrieved by the write-up and felt that he is defamed, it was he, who could have lodged the complaint. The complaint could have been lodged by the Public Prosecutor, as has been done in the instant case, only if defamation was in respect of his conduct in discharge of his public functions, which factor is absent in the write-up. 4.1.3 The last limb of his arguments was that Petitioner No. 2 was only Editor-in-Chief of the Daily Newspaper and was headquartered at New Delhi; whereas the write-up was published in Ahmedabad Edition of the said Daily Newspaper, which is being edited separately by local personnel. Petitioner No. 2, therefore, cannot be attributed any intention to defame, or knowledge about the write-up and, therefore also the complaint may be quashed. 4.2 Mr. Kavina submitted that to show their bona fides, the petitioners are ready to publish an apology or correction in newspapers like “Sambhav” and “Indian Express”. He submitted that similar article had appeared in the Indian Express and the Indian Express had published such a correction, pursuant to which, no action is taken against the Indian Express, and similar treatment may be given to the petitioners. 4.3 The learned Senior Advocate Mr. Kavina relied on the decision of this Court in the case of R.A. Goenka and Others vs. State of Gujarat & Others, 1986 GLH (UJ) 26, and a subsequent decision of this Court in Criminal Misc. Application No. 5605/2001, dated 12.10.2007, in the case of Falgunbhai Chimanbhai Patel vs. Gambhirsinh R. Dekare & Anr. 4.4 The learned Senior Advocate, ultimately, submitted that the petition may be accepted and the complaint may be quashed. 5. The petition is opposed to by learned A.P.P. Mr. Umesh Trivedi. He submitted that the write-up is so cleverly worded that if sentences are taken in isolation, they cannot be considered as defamatory, but, if the tenor of the write-up as it emerges from the reading of the write-up as a whole is taken, it is clearly defamatory and attributes some act on the part of Mr. Subba Rao which is derogatory and defamatory. Learned A.P.P. Mr. Trivedi, therefore, submitted that the petition may be dismissed. 6. Subba Rao which is derogatory and defamatory. Learned A.P.P. Mr. Trivedi, therefore, submitted that the petition may be dismissed. 6. This Court has considered the rival side submissions and has examined the complaint as well as the write-up complained of. 6.1 A plain reading of the complaint would indicate that it is lodged by the Public Prosecutor acting upon previous sanction of the Government. In order to appreciate the arguments of the learned Senior Advocate that the Public Prosecutor could have lodged the complaint on previous sanction of the Government only if the act alleged was in respect of a public servant employed in connection with the affairs of Union or State in respect of his conduct in discharge of his public functions, it would be appropriate to examine the provision of law contained in Section 199 of CrPC, which runs as under :— “199. (1) No Court 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 by the offence. Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. (2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory or a “Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions, a Court of Sessions may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor. (3) Every complaint referred to in Sub-section (2) 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. (4) No complaint under Sub-section (2) shall be made by the Public Prosecutor except with the previous sanction— (a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government; (b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State; (c) of the Central Government, in any other case (5) No Court of Session shall take cognizance of an offence under Sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed. (6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.” It is clear from the reading of Section 199(1) that no Court shall take cognizance of an offence punishable under Chapter XXI of IPC except upon a complaint made by some person aggrieved by the offence. It is thus clear that such a complaint can be made by only a person aggrieved by the offence. 6.2 An exception is carved out in Sub-section (2) of Section 199, where it is provided that notwithstanding anything contained in the Code, when any offence, falling under Chapter XXI of the Indian Penal Code, is alleged to have been committed against a person, who is a public servant employed in connection with the affairs of the Union or of a State and the conduct alleged in the complaint is in respect of discharge of his public function, the Sessions Court may take cognizance of such an offence. Sub-section (4) provides that no complaint under Sub-section (2) shall be made by the Public Prosecutor except with the previous sanction of the State Government in case of a person, who is and has been a Governor of that State or a Minister of that Government or a public servant employed in connection with the affairs of the State. 6.3 It is thus clear that a complaint for defamation can be taken cognizance of by the competent Court only if it is lodged by the person aggrieved or if it is made by a Public Prosecutor, provided it is in respect of a public servant employed in connection with the affairs of the Union or the State in respect of his conduct in discharge of his public functions. The argument is that there is nothing in the published write-up regarding the conduct of Mr. Subba Rao in discharge of his public functions. Therefore, the Public Prosecutor could not have lodged the complaint and the Court cannot take cognizance of such an offence alleged. 7. Having given a close scrutiny to the write-up complained of, this Court is of the view that the contention is rightly taken. There is nothing written in the article in question regarding the conduct of Mr. Subba Rao relating to his public functions. The City Sessions Court, therefore, could not have taken cognizance of the offences complained of, as has been done by its order dated 09.04.2001. 8. The overall tenor of the write-up would only go to show that different sources indicated closeness of Mr. Subba Rao to RSS and RSS trying to influence the State Government for posting Mr. Subba Rao as the Chief Secretary superseding other officers, but, no act, as such, is alleged to have been committed by Mr. Subba Rao, which would render his conduct to be branded as ‘defamatory’, more particularly, his conduct in discharge of his public functions. As a consequence, complaint by Public Prosecutor would not be competent to be taken cognizance of, and there is no legitimate purpose in keeping the matter alive or making the petitioners to face the trial. 9. Apart from the above aspects, there is one more additional ground for quashing the complaint, so far as it relates to Petitioner No. 2. He is, undisputedly, working as Editor-in-Chief and Managing Director of Asian Age in the Head Office at New Delhi. 9. Apart from the above aspects, there is one more additional ground for quashing the complaint, so far as it relates to Petitioner No. 2. He is, undisputedly, working as Editor-in-Chief and Managing Director of Asian Age in the Head Office at New Delhi. Undisputedly, the write-up appeared in the said Asian Age Daily Newspaper published from Ahmedabad. Editing of Ahmedabad Edition of the Daily is not even alleged against Petitioner No. 2. He is indicated to be the Managing Director and Editor-in-Chief of Asian Age in the Head Office at New Delhi. It is not alleged that Petitioner No. 2 was looking after day to day affairs of the Ahmedabad Edition. He may not be involved in the day to day working of publication of the Daily at Ahmedabad. In this context, decisions relied upon by the learned Senior Advocate Mr. Kavina may be profitably referred to in which similar view is taken. In the case of R.A.Goenka and Others (Supra), accused was the Editor stationed at Delhi and there was no allegation that news published at Ahmedabad were published after bringing them to his notice, and the complaint came to be quashed. In a similar situation, the Court took the same view, relying on the same decision in case of Falgunbhai Chimanbhai Patel vs. Gambhirsinh R. Dekare (Criminal Misc. Application No. 5605/2001), decided on 12.10.2007. In the present case also, it is found that involvement of Petitioner No. 2 in day to day affairs of the publication at Ahmedabad is not specifically alleged. The complaint against Petitioner No. 2 (orig. accused No. 2) deserves to be quashed on this ground also. Following the earlier judgments of this Court, the complaint and the process issued thereon deserve to be quashed. 11. For the foregoing reasons, the petition is allowed and the complaint bearing Criminal Case No. 3/2001 pending in the City Sessions Court, Ahmedabad and the process issued thereon by order dated 9.4.2001 are hereby quashed. Rule is made absolute accordingly.