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Madhya Pradesh High Court · body

2020 DIGILAW 557 (MP)

RANJANA SEHGAL v. JACOB THUDIPARA

2020-05-12

S.K.AWASTHI

body2020
ORDER : – The applicant/accused has preferred this petition under section 482 of the Criminal Procedure Code for quashment of order dated 18-9-2015 passed by Judicial Magistrate First Class, Indore in Criminal Case No. 29917/2015, whereby the cognizance has been taken against the applicant for commission of offence punishable under section 500 of the Indian Penal Code. 2. Briefly stated facts of the case are that on 7-6-2011, the applicant filed an application under section 6(1) of the Right to Information Act, 2005 (in short ‘RTI Act’, for inquiring certain information regarding the educational qualification of the respondent /complainant. The respondent/complainant being the Public Information Officer refused to provide any information. Then the applicant preferred an appeal before the First Appellate Authority, which was rejected. Thereafter, the applicant moved Second appeal before the M.P. State Information Commission, Bhopal and the same was allowed vide order dated 22-7-2014 and the respondent/complainant was directed to provide desired information to the applicant on free of cost. Thereafter, a news item was published in the daily newspaper ‘Nai Dunia’ on 9-8-2014, pertaining to the order of the State Information Commission. Thus, the respondent vide letter dated 22-8-2014 sought clarification from the applicant regarding the said article and threatened the applicant to initiate the defamation proceedings which was promptly denied by the applicant stating that there is no statement by her nor was the article published on her behest. But the respondent/complainant had filed complaint against the applicant for the offence punishable under section 500 of Indian Penal Code before the Judicial Magistrate First Class and vide order dated 18-9-2015, the learned Magistrate has taken cognizance against the applicant for the said offence. The applicant challenged the aforesaid order before the revisional Court by filing the revision application under section 397 of Criminal Procedure Code which was dismissed vide order dated 10-5-2016 by the 19th Additional Sessions Judge, Indore and the same is subject-matter of challenge in the present petition. 3. Learned counsel for the applicant has submitted that there was no statement or comment by the applicant which was published along with article in the news paper “Nai Duniya” on 9-8-2014. The said news item was reported by the journalist of the newspaper without any instructions or comment or on behest of the applicant. 3. Learned counsel for the applicant has submitted that there was no statement or comment by the applicant which was published along with article in the news paper “Nai Duniya” on 9-8-2014. The said news item was reported by the journalist of the newspaper without any instructions or comment or on behest of the applicant. No element can be said to be present in the newspaper article which can be attributed to the applicant directly or indirectly. It is further submitted that if the allegations made in the complaint taken on its face value does not prima facie constitute an offence under section 500 of the Indian Penal Code. The news report cannot be said to have initiated any accusation against the respondent/complainant with a purpose of tarnishing his image. Mere reporting of an order passed by an authority directing compliance cannot be said to be within ambit of work ‘defamation’ as defined in section 499 of the Indian Penal Code. Thus, the learned Magistrate has committed an error in taking cognizance against the applicant for commission of offence under section 500 of the Indian Penal Code. 4. On the other hand, learned counsel for the respondent supported the impugned order by contending that the applicant with intend to cause injuries to the image of the respondent/complaint in public at large got published the aforesaid news article in daily newspaper ‘Nai Dunia’. There is nothing in the said news article to show that the aforesaid article was published on the basis of press release given by any authority regarding the order of M.P. State Information Commission, Bhopal. Hence, prima facie there is sufficient ground available on record to prosecute the applicant for the commission of offence punishable under section 500 of the Indian Penal Code. Thus, learned counsel for the respondent prays for rejection of the petition. 5. Having heard, learned counsel for the parties and perused the record. 6. A perusal of the impugned order shows that the learned Magistrate has proceeded to pass the same in the most mechanical fashion. Thus, learned counsel for the respondent prays for rejection of the petition. 5. Having heard, learned counsel for the parties and perused the record. 6. A perusal of the impugned order shows that the learned Magistrate has proceeded to pass the same in the most mechanical fashion. It is well-nigh settled that while a summoning order need not and must not carry a detailed analysis of evidence, but at the same time, the order being one of moment, at least to the accused, who is thereafter to suffer the rigors of the criminal process, it must disclose due application of mind to all relevant evidence, both documentary and oral, depending, of course, on the nature of the offences involved. In the present matter since the case is one involving an offence under section 500, Indian Penal Code, where as already said, the imputation is written, or in other words libel, the document carrying the imputation being considered, albeit briefly by the Court while passing the impugned order, would be the minimum requirement of the law. In this connection, the law regarding the requirement of application of mind to the material on record at the stage of summoning by the Magistrate is succinctly laid down by their Lordships of the Supreme Court in Pepsi Foods Ltd. vs. Special Judicial Magistrate, (1998) 5 SCC 749 , where it is held : “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. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise 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.” 7. Turning to the imputation that have been made subject-matter of prosecution first is a applicant moved an application under section 6(1) of the Right to Information Act, 2005 for inquiring certain information regarding the educational qualification of the respondent/complainant. The respondent/ complainant who was also Public Information Officer did not provide any information, then applicant preferred appeal before the appellate authority, which was rejected promoting the applicant to file Second Appeal before the M.P. State Information Commission, Bhopal. The said appeal was allowed vide order dated 22-7-2014 and the respondent was directed to provide the desired information to the present applicant on free of cost. 8. In view of the order passed by the M.P. State Information Commission news item was published in daily news paper Nai Duniya on 9-8-2014, which is as under : 9. In order to appreciate the submission of the learned counsel for the applicant, it is necessary to refer to the provisions of section 499, and, specifically its 4th Exception. The provision reads thus : “499. Defamation. – Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1. – It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2. – It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3. – An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4. Explanation 2. – It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3. – An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4. – No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. *** Fourth Exception – Publication of reports of proceedings of Courts- It is not defamation to publish substantially true report of the proceedings of a Court of justice, or of the result of any such proceedings. Explanation – A justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of justice, is a Court within the meaning of the above section. *** 10. A perusal of the said news article, carrying the imputation under consideration, shows it be woefully vague and indeterminate. It does not mention as to what precisely was the content of the imputation that was published in the newspaper, the aforesaid news article is only based on the result of proceedings filed before the M. P. State Information Commission, Bhopal, therefore, the aforesaid publication comes within the purview of 4th Exception prescribed under section 499 of Indian Penal Code. There is nothing on record to show that the aforesaid article has been published on the basis of the information or instructions given by the applicant or on behest of the applicant, therefore, no such element can be said to be present in the newspaper article which can be attributed to the applicant directly or indirectly. There is nothing appears to be defamatory against the respondent/complainant in the news article, therefore, this Court unable to ascertain prima facie, that in fact the publication was defamatory in character. No offence punishable under section 500, Indian Penal Code is made out, on the basis of allegations said to be published in the Nai Duniya news paper. 11. There is nothing appears to be defamatory against the respondent/complainant in the news article, therefore, this Court unable to ascertain prima facie, that in fact the publication was defamatory in character. No offence punishable under section 500, Indian Penal Code is made out, on the basis of allegations said to be published in the Nai Duniya news paper. 11. In the result, the impugned proceedings giving rise to Complaint Case No. 29917/2015 pending before Judicial Magistrate First Class, Indore is hereby quashed. Let a copy of this order be sent to the concerned trial Court for compliance.