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Madhya Pradesh High Court · body

2015 DIGILAW 1227 (MP)

VIKRAM SEN v. SUDHA (deceased) through LR

2015-12-08

JARAT KUMAR JAIN

body2015
JUDGMENT : 1. This petition under section 482 of the Code of Criminal Procedure [for short “the Code”] has been filed against the order dated 19-12-2013 passed by the Second Additional Sessions Judge, Alirajpur in Cr.R.No. 26/2013 whereby order dated 16-8-2013 passed by the Judicial Magistrate First Class, Alirajpur in Criminal Case No. 798/2009 has been affirmed. 2. Brief facts of this case are that respondent No. 1 (since deceased) has filed a complaint against the petitioners respectively correspondent and Managing Director of daily newspaper “Agniban” stating that they published a defamatory news item against the respondent No. 1 in newspaper dated 13-4-2008. Judicial Magistrate First Class has taken the cognizance against the petitioners for the offence punishable under section 500 of the Indian Penal Code and issued notices. Petitioner appeared before the Magistrate and Magistrate has explained the particulars of offence to them. Meanwhile, the respondent/complainant Sudha died, therefore, learned Magistrate has allowed Mahendra, the brother of the deceased to proceed with the complaint. Against this order the petitioners have filed the Criminal Revision before the Second Additional Sessions Judge, Alirajpur. Learned Additional Sessions Judge by the impugned order dated 19-12-2013 dismissed the revision and maintained the order. Against this order the petitioners have filed this petition. 3. Learned Counsel for the petitioners submits that this is a summon case, therefore, as per the provision of section 256(2) of the Code after the death of complainant the respondents are entitled for acquittal whereas learned Magistrate has wrongly allowed the brother of the deceased complainant to continue the complaint. For this purpose he placed reliance on the judgment of Calcutta High Court in the case of Monmathanath vs. Niranjan reported in AIR 1967 Calcutta 442, Nanilal Samanta vs. Rabin Ghosh reported in AIR 1964 Calcutta 64 and judgment of Karnataka High Court Subbanna Hegde vs. Dyavappa reported in 1980 Cr.L.J. 1405, Allahabad High Court Bhagwani vs. State of U.P., Application No. 5 of 2012 decided on 12-9-2013. 4. Learned Counsel for the petitioners further submits that they published the news item bona fidely which comes under the Exception contained in section 499(9) of the Indian Penal Code. Hence, there is no material available against the petitioners to infer that they have committed offence as defined under section 499 of the Indian Penal Code. 5. 4. Learned Counsel for the petitioners further submits that they published the news item bona fidely which comes under the Exception contained in section 499(9) of the Indian Penal Code. Hence, there is no material available against the petitioners to infer that they have committed offence as defined under section 499 of the Indian Penal Code. 5. Per contra learned Counsel for the respondent submits that learned Trial Court considering the material has rightly granted permission to continue the complaint. For this purpose he placed reliance on the judgment of Apex Court in the case of Rashida Kamaluddin Syed vs. Shaikh Sahiblal Mardan (dead) reported in 2007 Cr.L.J. 2306 and judgment of this Court in the case of Rajmal vs. Dinesh reported in 2015(3) M.P.L.J. 69. 6. After hearing learned Counsel for the parties, record perused. 7. Hon’ble Apex Court in the case of Rashida Kamaluddin Syed vs. Shaikh Sahiblal Mardan (dead) reported in 2007 Cr.L.J. 2306 held that :— 23. The Court also considered Ashwin Nanubhai and observed; “The question as to whether heirs of the complainant can be allowed to file an application under section 302 of the Code to continue the prosecution is no longer res integra as the same has been concluded by a decision of this Court in the case of Ashwin Nanubhai Vyas vs. State of Maharashtra and anr., (1967) 1 SCR 807 in which case the Court was dealing with a case under section 495 of the Code of Criminal procedure, 1898, which is corresponding to section 302 of the Code. In that case, it was laid down that upon the death of the complainant, under the provisions of section 495 of the said Code, mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application either herself or through a pleader.” 24. Reference was also made to Balasaheb K. Thackeray and anr. vs. Venkat @ Babru and another, (2006) 5 SCC 530 : JT 2006 (7) SC 44, to which one of us (C. K. Thakkar, J.) was a party. In that case, V filed a complaint against the accused in the Court of Judicial Magistrate First Class for commission of offence punishable under section 500 read with 34, Indian Penal Code. The complainant, however, died in 2005 during the pendency of the proceedings in this Court. In that case, V filed a complaint against the accused in the Court of Judicial Magistrate First Class for commission of offence punishable under section 500 read with 34, Indian Penal Code. The complainant, however, died in 2005 during the pendency of the proceedings in this Court. The accused, therefore, made an application under section 256 of the Code for dismissal of the complaint on the ground of death of complainant. Legal heirs of the complainant submitted that they would make an application before the Trial Court where the case was pending as the accused had approached this Court against an interim order and the proceedings were pending in the Trial Court. 25. This Court considered the provisions of section 495 of the old Code and section 302 of the present Code as also Ashwin Nanubhai and Jimmy Jahangir and observed that since the proceedings were pending before the Trial Court, it was not necessary to express any opinion one way or the other. It was observed that if any permission would be sought to continue prosecution by the legal heirs of the deceased, the Court would consider the same in its proper perspective and take an appropriate decision in accordance with law. 26. From the above case law, in our opinion, it is clear that on the death of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons of complainant to apply for continuation of proceedings against accused persons. By granting such prayer, no illegality has been committed by the courts. 27. There is an additional reason as to why the order should not be interfered with at this stage. As we have already noted, the complainant died in November, 1996. Immediately thereafter, sons applied for impleadment allowing them to continue prosecution against the accused persons by the application dated January 17, 1997. The said application was allowed and permission was granted by an order dated May 23, 1997. The said order was never challenged by the appellants and it had become final. 8. In the present case the court has allowed the brother of the complainant to continue the prosecution. That order has not been challenged then this order become final and subsequently when the particulars of offence have been explained then the earlier order was challenged by the petitioners. 9. Now, I have considered the second objection raised by the petitioners. 8. In the present case the court has allowed the brother of the complainant to continue the prosecution. That order has not been challenged then this order become final and subsequently when the particulars of offence have been explained then the earlier order was challenged by the petitioners. 9. Now, I have considered the second objection raised by the petitioners. Learned Counsel for the petitioners submitted that petitioners have published the news item in the newspaper in good faith. Therefore, the case of the petitioners comes within the 9th Exception of section 499 of the Indian Penal Code. This Court in the case of Sitaram vs. State of M.P. held that the correspondent has no privilege in such matter. It is also to be noted that the petitioners have acted in a good faith, is a question of fact and has to be decided in the course of trial and the journalists do not enjoy any special privilege. For this purpose see Sevakram vs. R. K. Karanjiya reported in AIR 1981 SC 1514 . 10. With the aforesaid discussion, I am of the view that the petitioners’ defence cannot be considered at this stage. Hence, there is no substance in the objections raised by the learned Counsel for the petitioners, therefore, the petition is hereby dismissed.