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2013 DIGILAW 792 (CAL)

Gautam Kundu v. Nazul Islam

2013-10-08

ASIM KUMAR MONDAL

body2013
JUDGMENT Asim Kumar Mondal, J.: This is an application under Section 482 of the Code of Criminal Procedure praying for quashing of proceedings in case No. A.C.––2203 of 2012 now pending before the learned Judicial Magistrate, 7th Court at Alipore, South 24-Parganas under Sections 500/501/502/34 of the Indian Penal Code and all orders passed therein including orders dated September 10th, 2012, October 10th, 2012 and February 6th, 2013. 2. The petitioner No. 1 is an ex-director of M/s. Rose Valley Patrika Ltd. which publishes a vernacular daily in Bengali namely ‘Khabar 365 Din’. The petitioner No. 2 is an editor of the said newspaper. The opposite party No. 1 filed one complaint case implicated petitioner No. 1 and 2 being case No. A.C. – 2203 of 2012 before the learned Additional Chief Judicial Magistrate at Alipore and subsequently the said complaint was transferred to learned Judicial Magistrate, 7th Court at Alipore, South 24 Parganas for disposal. The opposite party No. 1 filed the said complaint alleging that the petitioners published several defamatory articles in the newspaper ‘Khabar 365 Din’ against the opposite party No. 1 on their daily issued of publication dated March 28th, 2012, March 29th, 2012 and May 1st, 2012. The reputation of opposite party No. 1 due to publication of such articles against the opposite party No. 1 has been lower down amongst his colleagues and persons associated with him. The opposite party No. 1 who is posted presently as the Additional Director General and Inspector General of Police, training, West Bengal as such filed the complaint against the petitioners under Section 500/501/502/34 of Indian Penal Code. The learned Judicial Magistrate, 7th Court at Alipore, South 24 Parganas after receiving the file of the case was pleased to examine the opposite party No. 1 and another witness produced by him on solemn affirmation and thereafter issued process under Section 500/501/502/34 of Indian Penal Code against the present petitioners by order dated October 10th, 2012. 3. The learned advocates for the petitioners duly appeared before the learned Magistrate on February 6th, 2013 and filed petitions under Section 205 of the Code of Criminal Procedure which was dealt with by the learned Trial Court directed that for the purpose of consideration of the applications filed by the petitioners under Section 205 of the Code of Criminal Procedure their appearance is required first otherwise warrant of arrest to be issued. 4. Being aggrieved by and dissatisfied with the order impugned the petitioners have preferred the present application on the grounds that the initiation and continuation of the proceedings itself would be a gross abuse of process law; further that the facts as stated in the complaint and initial deposition of the witnesses even if believed to be true and taken in their entirety do not make out any prosecutable offence against the petitioners and finally the purported newspaper articles does not constitute the offences as alleged and as such the petitioners cannot be made vicariously liable in the facts and circumstances of the instant case. 5. Mr. Debasish Roy with Somopriya Chowdhury, Mrs. Subhasree Patel and Mr. Arnab Saha appears on behalf of the petitioners and submits that application in respect of the petitioner No. 2 Prasun Gupta, printer, editor and publisher was dismissed after exempting his personal appearance in terms 205 of the Criminal Procedure Code of order of this Court dated March 19th, 2013 and quashing application is alive in respect of the petitioner No. 1 Sri Gautam Kundu. Learned Counsels advanced his argument mainly on the grounds on non-compliance with the mandatory provisions of Section 202 of the Code of Criminal Procedure and applicability of Section 205 of the Code of Criminal Procedure, 1973. Further that there is no vicarious liability of any offences under the Indian Penal Code as alleged, there is lack of cause of action to proceed against the petitioner No. 1 in view of Section 7 of the Press and Registration of Books Act, 1867 and lastly lack of material particulars in initial deposition. Mr. Roy relied upon the decisions of Hon’ble Apex Court reported in (2013) 2 SCC 488 , (2003) 2 SCC 435, (2001) 7 SCC 401 , (2004) Cal Cr. L.R. (Cal) 956, (2008) 5 SCC 662 , (2008) 5 SCC 668 , AIR 1979 SC 155, AIR 1968 SC 110 , AIR 1992 SC 2206 . Learned Counsel submits that the petitioners / accused persons admittedly residing at a place beyond the jurisdiction of the learned Court below issued process without complying the provisions of Section 202 of the Code of Criminal Procedure. Learned Court below should have been either enquired the case himself or direct an investigation to be made by Police Officer by or such either person as he thinks fit. Learned Court below should have been either enquired the case himself or direct an investigation to be made by Police Officer by or such either person as he thinks fit. The address of the petitioners as disclosed in the complaint falls under the jurisdiction of Chief Metropolitan Magistrate, Kolkata, Bankshall Court. So learned Magistrate ought to have postponed the issuance of process and conduct enquiry or investigation in terms of provisions of Section 202 of the Criminal Procedure Code. 6. Further Mr. Roy argued and submitted that the offences as alleged are summons triable. In such cases accused persons residing beyond the territorial jurisdiction of a Court should be exempted from appearing before the learned Magistrate. Even the first appearance of accused may be dispensed with and may be permitted to be represented by his lawyer. Mr. Roy further submits that Indian penal Code does not contemplate any concept of vicarious liability of an individual for an offence committed by another individual. The only manner in which a person can be made liable is by direct and specific overact disclosing how and what manner the said person committed the offence. If such averment is lacking in the complaint and individual accused cannot be made vicariously liable or any offence committed by a company or another individual. It is also submitted by Mr. Roy that in view of provisions under Section 7 of the Press and Regulation of Book Act, when the proceeding is continuing against printer, editor and publisher of the newspaper i.e. Prasun Gupta no other entity each individual including the petitioner No. 1 is recognized to be prosecuted. Where the printer, editor and publisher is one and same person, Press does not recognize any other local entity except the editor in so far as the responsibilities of an offence concerned. Lastly it is submitted by Mr. Roy that there are lack of material particulars in initial deposition, which is shattered and on solemn affirmation the proceeding cannot be proceeded any further. 7. In reply Mr. Golam Mostaffa with Mr. Kaushik Bhatta appears on behalf of the opposite party No. 1. Mr. Mostaffa submits that admittedly the petitioners are connected with the daily newspaper named as “Khabar 365 Din’ the news as alleged in the complaint published in the said newspaper is also not denied. 7. In reply Mr. Golam Mostaffa with Mr. Kaushik Bhatta appears on behalf of the opposite party No. 1. Mr. Mostaffa submits that admittedly the petitioners are connected with the daily newspaper named as “Khabar 365 Din’ the news as alleged in the complaint published in the said newspaper is also not denied. The complainant in his complaint has specifically pleaded that the accused person No. 1 is a private limited company which is owner and proprietor of a newspaper run under the name and style ‘Khabar 365 Din’ which is entirely under the administrative, creative and financial control of accused No. 1. The accused No. 1 is a juristic person whose actual day to day affairs and administrative control specifically with regard to the said newspaper, lies with the accused No. 2 and 3 who are directly responsible for authoring, editing, and clearing for publication the content of the newspapers, including defamatory articles which formed the subject matter in the complaint. The accused No. 2 is an editor, publisher and printer of the said newspaper and accused No. 3 is a chief publisher. In support of the information Mr. Mostaffa draw my attention on the annexure-P of the revisional application which is form 32 there is a specific allegation that in pursuance of a conspiracy to defame the complainant the petitioners have published several defamatory and malicious articles which was printed in the said newspaper. The said newspapers have a wide circulation in the society. The prestige and goodwill of the complainant has been lowered down before the estimation and eye of the society. Due to the effect, of such irresponsible and malicious reports, notice was served to the complainant by the principal secretary, Government of West Bengal on August 6th, 2012 which prima facie demonstrate how the reports have directly affected the reputation, career and life of the complainant. 8. Mr. Mostaffa relied upon a decision of Hon’ble Apex Court reported in AIR 1976 Supreme Court 1947 submits that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence laid in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. Further Mr. Mostaffa submits that the scope of the enquiry under Section 202 is extremely limited. Further Mr. Mostaffa submits that the scope of the enquiry under Section 202 is extremely limited. Only to ascertain the truth or falsehood of the allegations made in the complaint (1) on the material placed by the complainant before the Court (2) for the limited purpose of finding out whether a prima facie case for issue of the process has been made out and (3) for deciding the question purely from the point of view of the complaint without at all adverting to any defence at the accused may have. The section 202 of the Criminal Procedure Code is absolutely relates to the Court to decide whether the process may be issued or not. In coming to a decision as to whether a process should be issued or not, the Magistrate can take into consideration the materials placed before him to ascertain the probabilities. The magistrate has given a discretion which has been judicially exercised in the present case. No Court can substitute it’s own discretion in the event the Magistrate has exercised its discretion. Mr. Mostaffa further submits relied upon a decision of Hon’ble Apex Court reported in 2013 Volume 2 Supreme Court Cases 488 that the investigation under Section 202 of the Criminal procedure Code is limited to ascertain truth or falsehood of allegations made in complaint. Mr. Mostaffa relied upon a decision of Hon’ble Apex Court reported in AIR 2013 Supreme Court 1952 in support of his submissions that the doctrine of abuse of process of Court and the remedy of refusal to allow the trial to proceed is well established. The Court is to consider and confirm that an abuse of process justifying the quashing of a proceeding only in the case (1) where it would be impossible to give the accused a fair trial or (2) where it would amount to misuse/manipulation of process because it offends the Court’s sense of justice and propriety to be asked to try the accused in the circumstances of particular case. 9. In view of the submissions and arguments advanced by the learned Counsels and also the decisions of Hon’ble Apex Court placed before me by the learned Counsels in respect of their respective submissions and arguments I have to consider the same in the light of the facts and circumstances of the present case. 9. In view of the submissions and arguments advanced by the learned Counsels and also the decisions of Hon’ble Apex Court placed before me by the learned Counsels in respect of their respective submissions and arguments I have to consider the same in the light of the facts and circumstances of the present case. In the present case admittedly the petitioners are related and connected with the accused No. 1 Rose Valley Patrika Ltd which is the owner and proprietor of the newspaper run in the name and style of ‘Khabar 365 Din’ which is entirely under the administrative, creative and financial control of the accused No. 1. The accused No. 2 looks after the day to day affairs and administrative control specially with regard to the newspaper and are directly responsible for authorizing, editing and clearing for publication. It also appears to me that several articles relating to the activities of the opposite party No. 1 has been published on several days in the newspapers in the name and style ‘Khabar 365 Din’ whether the said articles constitutes an offence of defamation, damaging the reputation of the complainant which is a matter of debate and should be decided by the learned Trial Court. The complainant, no doubt has made out a debatable case before the learned Magistrate, prima facie supported by the initial statement of the witnesses and documents produced by the complainant. So, it cannot be said that the complaint suffers from lack of material particulars. The object and scope of enquiry under Section 202 is limited to ascertain truth or falsehood of allegations made in the complaint. In the instant case the complaint is mainly based upon the some documents which are the news articles published in a particular newspaper and some notices served upon the complainant by his superior authority. It is true that the learned Trial Court did not pass the order impugned assigning the reasons of non-compliance of the provisions under Section 202 (as amended). In my considered view it will not cause any miscarriage of justice or will prejudice the petitioners. It is not acceptable that only because of the fact that the petitioners are residing outside the jurisdiction of the Court, the issuance of process should be quashed on the plea of non-compliance of provisions of Section 202 of the Criminal Procedure Code. In my considered view it will not cause any miscarriage of justice or will prejudice the petitioners. It is not acceptable that only because of the fact that the petitioners are residing outside the jurisdiction of the Court, the issuance of process should be quashed on the plea of non-compliance of provisions of Section 202 of the Criminal Procedure Code. The reason behind my opinion is that as it appears from the order impugned that the learned Magistrate was satisfied with the materials produced before him and as such issued process accordingly. 10. The petitioner No. 1 has been described as printer, editor and publisher of the said newspaper who is responsible for selection of the materials. If the name of such person appears in the newspaper, the presumption under Section 7 in respect of such person arose. The superior Court under Section 482 of the Code of the Criminal Procedure should not interfere unless grave illegality is committed. In the instant case it appears that the petitioner No. 1 being the printer, editor and publisher had knowledge and was responsible for publishing alleged defamatory matter in the said newspapers. On the plea of no vicarious liability in the alleged offence the complainant would be left without any remedy to redress his grievances against the culprit. 11. Considering the all aspects materials available in the record and having regard to the submissions of the learned Counsels for the parties as well as the decisions of Hon’ble Apex Court placed before me I do not find any convincing reasons to quash the proceedings initiated against the petitioners. In the result the instant revisional application is liable to be dismissed having no merits. Thus, the revisional application is dismissed without cost. The order impugned remain un-interfered. The observations as made in the body of the judgment is for a limited purpose of deciding the revisional application without entering into the merit of the complaint lodged by the opposite party No. 1. 12. C.R.A.N. being No. 1501 of 2013 is also dismissed being infractuous. The stay granted by the Court stands vacated. 13. Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.