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2017 DIGILAW 1343 (GAU)

HAIDER HUSSAIN v. RAMESH SAIKIA

2017-10-23

AJIT BORTHAKUR

body2017
JUDGMENT : Ajit Borthakur, J. This First appeal of 2004 has been preferred against the judgment and decree, dated 11.08.2004, passed by the learned Civil Judge (Senior Division) at Golaghat, Assam in Money Suit No. 13 of 2001, whereby the plaintiff/respondent's suit is decreed for Rs. 1 (one) crore as compensation for publishing the alleged defamatory news item. 2. The defendant/appellants' case, precisely, is that the plaintiff/respondent instituted a Money Suit, being M.S. No. 13/2001, on 12.12.2001, before the Court of learned Civil Judge, (Senior Division) at Golaghat praying for a decree of Rs. 1 (one) crore shown in the schedule of the plaint with interest @ 18% from the date of institution of the suit till final recovery, on account of publication of the alleged defamatory and false news items in their vernacular daily, namely, 'Asomiya Pratidin' in its issues, dated 11.07.2001,13.07.2001, 14.07.2001 and 21.07.2001, under the captions stated below- " Be-Ce-Elor Bisoya Apaharanar Chesta" "Golaghat Hotelot Sulphar Tandob" (issue dated 11th) "Dhora Pora Nai Polatak Ramesh" (issue dated 13th) Sulpha Rameshor Ambulance" "Dispur Mantri-Bidhayakar Duare Duare Sulpha" (issue dated 20th). 3. The plaintiff/respondent contended that the above mentioned news items, inter-alia, contained the following allegations :- (i) That last evening a group of ten persons under the leadership of Sulpha, Ramesh Saikia, coming in an Ambulance and a corpse-carrying vehicle arrived at Nambor Guest House of town with the avowed intention of abducting an executive of the Bharat Calciners Ltd., named Harish Chandra Jha, whereupon the said Jha fled from the Guest House. Only when they got a scent of the arrival of the police, the group left the spot in a hurry. (ii) That Ramesh Saikia had collected Lakhs of rupees by imposing 'Goonda Tax' in the name of KISSAN TRADERS'. (iii) That the Transport Minister, Sri Anjan Dutta had directed the registration of Assam Sewa Samaj', a front organization of Sulpha Ramesh Saikia, to be cancelled. (iv) That Sri Ramesh Saikia and Sri Jitu Bora, the main persons of the abduction attempted of B.C. Limited Company's executive, are still absconding. It has become a big question for the people of Golaghat as to why the registration of Assam Sewa Samaj' and 'Kissan Traders-the two front Organizations formed by Ramesh Saikia with the object of imposing 'Goonda Tax' on essential commodities and comment etc., had not yet been cancelled. 4. It has become a big question for the people of Golaghat as to why the registration of Assam Sewa Samaj' and 'Kissan Traders-the two front Organizations formed by Ramesh Saikia with the object of imposing 'Goonda Tax' on essential commodities and comment etc., had not yet been cancelled. 4. The Plaintiff/respondent further contended that the defendant/appellants being actuated by malice, printed and published the above news items with distorted and defamatory facts with intent to lower esteem, prestige and honour of him in the eye of the public in general, which adversely affected his business in a most cruel and unjust manner. 5. The defendant/appellants contested the suit, inter-alia, on the grounds that the suit is barred by limitation and it is bad for non-joinder of necessary parties; that no such defamatory publications were made in their newspaper, with reference to the captions alleged; that the allegation of publication of any news item under the caption 'Sulpha Rameshar Ambulance' is a wild allegation as its date of publication is not mentioned and so also in respect of the contents stated in sub-para (i) to (iv), which are without material facts like that of publications, page number, columns etc; that the plaintiff/respondent has been accused in Golaghat P.S. Case Nos. 205/ 2001, 208/2001 and 230/2001, based on which some news items were flashed in local dailies including 'Asomiya Pratidin' simultaneously with other news papers, namely, 'Dainik Janambhumi', 'Ajir Asom', 'Ajir Batori', 'the Telegraph',' The Sentinel etc., which have not been shed in the suit and that some reports of the local correspondents of Golaghat were published in bonafide belief and for public good, with all fairness without any element of malice. Hence, prayed to dismiss the suit with cost of Rs. 1 (one) lakh. 6. In view of the above pleadings, the learned trial Court framed the following issues :- "(1) Whether there is cause of action to try the suit? (2) Whether the suit is bad for non-joinder of necessary parties? (3) Whether the news published in the issue dated 11.07.2001 as 'Golaghat Sulphar Tandob'and issue dated 13.07.2001 under caption 'Dhora pora nai polatak Ramesh', issue published on 17.07.2001 under caption 'Sulpha Rameshar Ambulance' and news published on 20.07.2001, under heading 'Dispur Montri Bidhayakar Duare Duare Sulpha' in News paper 'Asamiya Pratidin' are false and defamatory? (4) Whether plaintiff is entitled for a decree as prayed? (4) Whether plaintiff is entitled for a decree as prayed? (5) Whether defendant is entitled for compensation of Rs. 1,00,000/- (Rupees one lakh) for false and vexatious suit?" 7. In order to establish the claim, the plaintiff/respondent examined 6 (six) witnesses including himself, while the defendant/appellants examined none. Thereafter, the learned trial Court, on hearing the learned counsel for the plaintiff/respondent and in absence of the learned counsel for the defendant/appellants, without hearing, delivered the impugned judgment and decree as stated above. 8. By the instant appeal, the defendant/appellants challenged the impugned judgment and decree, inter-alia, on the following grounds; (i) That the learned trial Court failed to consider that the freedom of press is freedom of expressions which is guaranteed under Article 19 (1) (a) of the Constitution of India and that the news items containing the alleged defamatory statements were published in public interest in exercise of the aforesaid Article of the constitution; (ii) That the learned trial Court failed to appreciate the inherent contradictions between the averments made in the plaint and evidence; (iii) That the learned Trial Court, without affording opportunity to the defendant/appellants to cross-examine the plaintiffs witnesses, decreed the suit; (iv) That the plaintiff/respondent did not produce the original copy of the relevant newspapers; (v) That the decretal amount of Rs. 1 (one) crore is without any legal basis; and (vi) That the evidence on the suit record does not satisfy the essential ingredients, which are required to be proved in a suit for compensation for libel. 9. It is pertinent to mention that as per order, dated 16.05.2007, passed by a Division Bench of this Court, the defendant/appellants examined 8 (eight) witnesses, and they were cross-examined by the plaintiff/respondent vide order, dated 07.08.2008, passed by the learned trial Court in M.S. No. 13/01. Thereafter, the appeal was dismissed for default vide order, dated 13.02.2015, which was restored to file by an order, dated 12.10.15. 10. I have heard Mr. A.D. Choudhury, learned counsel appearing on behalf of the defendant/appellants and Mr. P. Bora, learned counsel for the plaintiff/respondent. Also appreciated the evidence on record with reference to the grounds of the instant appeal. 11. The right to freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution is a right with a corresponding duty and limitations of Article 19 (2), inter-alia, which provides for decency and morality. P. Bora, learned counsel for the plaintiff/respondent. Also appreciated the evidence on record with reference to the grounds of the instant appeal. 11. The right to freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution is a right with a corresponding duty and limitations of Article 19 (2), inter-alia, which provides for decency and morality. This right cannot be exercised recklessly and in utter disregard to the other person's honour and reputation guaranted under Article 21 of the Constitution. Undoubtedly. the freedom of the print media is an essential pre-requisite of democracy, but is not absolute and unrestricted. The protection is available only when the right is exercised honestly and with bonafide intention. 12. The defendant/appellants, who are the Editor, Printer and Publisher and owner/Proprietor of the Assamese daily, namely, 'Asomiya Pratidin' denied the allegations levelled against them by the plaintiff respondent terming the same as wild allegations, as the publication of the said news items were based on public documents and being published bonafide with all fairness and without any element of malice or ill-will. In order to establish an action for libel, the plaintiff must show that the statement complained of is (i) false, (ii) in writing, (iii) defamatory, (iv) published A publication is defamatory if the same is false and intended to lower the plaintiff in the estimation of the society in general. 13. It is noticed from the suit record that the plaintiff/respondent's all the 6 (six) witnesses were not cross-examined by the defendant/appellants, although their evidence-in-chief on affidavits were filed in between 11.03.2003 to 10.06.2003 and copy thereof furnished to them. By order, dated 13.7.2004, the learned Trial Court closed the evidence of the plaintiff respondent's side for failure to cross-examine the witnesses and for absence of their learned counsel. Needless to say that normally, when a witness is not cross-examined, the Court can draw a presumption to the effect that whatever the witnesses has stated is true. This is the rule of essential justice, which is, of course, subject to the exception, if his evidence is otherwise does not appear to be trustworthy. Needless to say that normally, when a witness is not cross-examined, the Court can draw a presumption to the effect that whatever the witnesses has stated is true. This is the rule of essential justice, which is, of course, subject to the exception, if his evidence is otherwise does not appear to be trustworthy. Although, the plaintiff respondent appears to have led evidence to prima facie establish a preponderance of probability of defamation caused by publication of the aforesaid news items in the vernacular daily, namely, 'Asomiya Pratidin', the same has been shaken substantially by the defendant/appellants through their 7 (seven) number of DWs, namely, DW. 1 SI Sonaram Deka, the attached officer of Golaghat P.S., DW. 2 Apurba Ballav Goswami, the owner of a hotel and informant in Golaghat P.S. Case No. 205/01, DW. 3 Darshan Gohain, joint informant along with DW. 2, DW. 4 Lohit Gogoi, a local correspondent of Ajir Asom', Dw. 5 Amol Chandra Konwar, the then Secretary of Manab Adhikar Unnayan Samiti', DW. 6 Bikash Sharma, the then special correspondent of 'Asomiya Pratidin', DW. 7 Tulumoni Gogoi Konwar and DW. 8 Diganta Bhuyan. 14. The evidence led by the defendant/appellants clearly show that based on the FIR, dated 10.07.2001, lodged by D W. 2 vide Ext. 'A' Golaghat P.S. Case No. 205/01 under section 143/ 448/365/511/506 IPC was registered against the plaintiff/respondent No. 2 and 2 (two) others. Again based on the FIR, dated 12.07.2001 lodged by DW. 7 Tulumoni Gogoi Konwar vide Ext. 'B', Golaghat P.S. Case No. 208/01 under section 143/448/384/511/506 IPC was registered against the plaintiff/respondent and another. Similarly, based on the FIR, dated 24.07.2001, vide Ext. 'C lodged by inspector Nurul Islam, the Officer-in-Charge of Golaghat P.S., a case being the said P.S. Case No. 230/2001 under section 384 IPC was registered. Placing reliance on the aforesaid registered FIRs and other sources, relevant news items were published in the Telegraph in its issue, dated 13.07.2001 vide Ext. 'D', where Ext. D (1) is the relevant news item; The Sentinel in its issue, dated 12.07.2001 vide Ext. 'E' where Ext. E (1) is the relevant news item. Likewise, news items vide Ext. 'F' (1) was published in Ext. "F', 'Dainik Agradoot' in its issue, dated 12.07.2001 and in the Dainik Janambhumi, in its issue, dated 12.07.2001, vide Ext. 'G', wherein vide Ext. 'E' where Ext. E (1) is the relevant news item. Likewise, news items vide Ext. 'F' (1) was published in Ext. "F', 'Dainik Agradoot' in its issue, dated 12.07.2001 and in the Dainik Janambhumi, in its issue, dated 12.07.2001, vide Ext. 'G', wherein vide Ext. G (1) is the relevant news item and further, in 'Ajir Asom', in its issue, dated 12.07.2001, vide Ext. 'H', wherein Ext. H (1), the relevant news item were published. Besides, the aforesaid items, the defendant/appellants have exhibited Ext. T, the FIR, dated 11.07.2001, lodged by DW. 3 and Ext. 'J', the Press statement, dated Nil, given by D W. 5, which was published in various local newspapers. 15. The evidence reveals that the plaintiff respondent was an ex-member of an organization and all those exhibited documents flashed his and others' prima-facie complicity to certain alleged conduct prejudicial to public interest. Those news items were published in a series of local newspapers including 'Asomiya Pratidin' and other national news papers, aforementioned, out of which, the concerned authorities of Asomiya Pratidin' only have been sued herein terming the news items as false, concocted and defamatory. Thus, the defendant/appellants, having printed and published the grievances of the public, based on the public documents and report of the local correspondents, aforementioned, through the news items exhibited in the suit by both the parties pertaining to the plaintiff respondent, amongst others, cannot be said to be defamatory being allegedly false and concocted. There is no evidence to show that the plaintiff/respondent made any endeavour to publish any clarification in the defendant/appellant's newspaper 'Asomiya Pratidin' contradicting the news items and as such published on good faith and in public interest without any personal vendetta or malice against the plaintiff respondent. The publications so made by the defendant/appellants cannot rightly be construed in defamatory sense. Accordingly, the learned tiral Court's finding on the principal issue No. 3 in the affirmative is reversed and answered in the negative. 16. As indicated above, the suit is bad for non-joinder of the Editors, Publishers and Printers and also Proprietors of the other newspapers which also published news items on similar or same facts. Therefore, the issue No. 2 is decided in the affirmative. On the other hand, in view of the aforementioned findings on issue Nos. 2 and 3, the issue Nos. 1, 4 and 5 are answered in the negative. 17. Therefore, the issue No. 2 is decided in the affirmative. On the other hand, in view of the aforementioned findings on issue Nos. 2 and 3, the issue Nos. 1, 4 and 5 are answered in the negative. 17. For the above stated reasons, the appeal stands allowed and the impugned judgment and decree is hereby set aside and quashed. 18. Send back the LCRs along with a copy of this judgment and order.