in the court of the metropolitan magistrate, 16th … · 3 c.c.no.3359/ss/10 3. the accused no.1 is...
TRANSCRIPT
1 C.C.No.3359/SS/10
Received on : 05/07/2004 Registered on : 05/07/2004 Decided on : 17/06/2014
Duration : Y M D 09 11 12
IN THE COURT OF THE METROPOLITAN MAGISTRATE, 16TH COURT, BALLARD PIER, MUMBAI.
(Before S. R. Padwal)
CASE NO. 3359/SS/10
Ajay Ganesh Ubale, R/o. Flat No.50, 7th floor, Central RevenueApt., 213, Narayan Dabholkar Road, Malbar Hill, Mumbai400 006; and Having his office at Chief Commissioner of Excise Office, Central Excise Bldg., 115 Maharshi Karve Rd,Mumbai400 020. ....Complainant.
V/s.
1] Shobhana Bhartia,ViceChairperson and Editorial Director,
2] Vir Sanghvi,Editorial Director,
3] Arun Roy Choudhary,Resident Editor,
4] Sudhi Ranjan Sen,Author and News Reporter,
5] Kumkum Chadda,SubEditor,
6] Rakesh Sharma,Publisher and Printer.All the accused are having their Office atHindustan Times Press, 1820 KasturbaGandhi Marg, New Delhi110001. ....Accused.
Charge: U/Secs. 500, 501 & 502 r/w. 34 of the Indian Penal Code, 1860.
2 C.C.No.3359/SS/10
========================================Advocate for Complainant : Ld. Adv. Shri Vijay HiremathAdvocate for Accused : Ld. Counsel Shri Mihir Gheewala.
J U D G M E N T(Delivered on 17/06/2014)
1. The accused are facing trial for the offence punishable
U/Secs.500, 501, 502 r/w. 34 of the Indian Penal Code.
2. Brief facts of the prosecution case are as under :
The Complainant Mr. Ajay Ganesh Ubale was functioning as Addl.
Commissioner of Central Excise and was repatriated in the Year2000 from
the office of Zonal Director of Narcotics Control Bureau (Hereinafter referred
to as NCB). The complainant hails from an eminent and respectable family
out of which many members have served in Senior Government posts. His
wife is a practicing Doctor and his father and fatherinlaw retired as
Inspector General of Police of Maharashtra. His brother is an IAS Officer
serving as Secretary, Govt. of Maharashtra. The complainant passed the Civil
service examination till 1988 and selected to the Indian Custom and Central
Excise service (Group A). The Revenue Secretary, Govt. of India commended
his work and due to his outstanding service record, he was posted as Zonal
Director of Mumbai Unit of NCB and under his Directorship surpassed its
previous performance in the Year2000. The Hindustan Times Company is the
owner of Hindustan Times (In short Newspaper), a national daily newspaper
published from New Delhi having registered office at Hindustan Times Press,
1820, Kasturba Gandhi Marg, New Delhi1. The said Newspaper has a fairly
large circulation in Mumbai having bureau office in Mumbai at 220230,
MhatrePen Building Complex, BWing, 2nd floor, Senapati Bapat Marg,
Dadar.
3 C.C.No.3359/SS/10
3. The accused No.1 is Vice chairperson of Hindustan Times Pvt. Ltd.
and Editorial Director of said Newspaper who controls the selection of the
matter i.e. published in the said Newspaper and the accused No.2 was the
Editor of the said Newspaper at the relevant time and presently is the
Editorial Director and accused No.3 is the resident Director of the said
Newspaper. The accused Nos. 1 to 3 are responsible for editorial control over
the publication of news reports and other articles in the said Newspaper
edition printed and published in New Delhi. The accused No.4 is the author
of the article titled as, “Mumbai NCB Chief under CBI Scanner” appeared in
the December 4, 2001 New Delhi edition on the page No.9 of the said
Newspaper which is defamatory to the complainant. The accused No.5 is the
subeditor at the relevant time who selects the report of News from outside
Delhi for publication which were finally approved by the accused Nos. 1 to 3.
The accused No. 6 is the Publisher and Printer of the said Newspaper. The
names of accused Nos. 2, 3 & 6 were published in New Delhi edition of the
said Newspaper issue dated 04/12/2001 as editor, resident editor and printer
and publisher respectively. The accused Nos. 1 to 3 and 5 selected and
approved the defamatory article written by accused No.4 despite the fact that
it was per se and prime facie defamatory to the complainant and false to the
knowledge of the accused persons as they had in their possession which
falsified the defamatory imputations and despite the complainant’s version
not being adverted in the said article. The said article is also in the hard copy
and the Web versions titled as “Mumbai NCB Chief under CBI
Scanner” (referred as said article). The accused Nos. 1 to 6 are jointly and
severally liable for the publication of defamatory article.
4. According to the complainant, the facts leading to publish the said
4 C.C.No.3359/SS/10
article are that on 13/14072001 while the complainant was Zonal Director
of NCB, the Officers of the said bureau seized Mandrax tablets in a raid at
Powai and 4 persons including Mr. Navin Dubey (now deceased) were
detained. Mr. Dubey subsequently released and filed complaint with CBI on
18/07/2001 that 3 raiding officers viz. Mr. Aswale, Tokte and Nager have
manhandled and threatened him and demanded a bribe of Rs. 5 Lacs and,
therefore, on 18/07/2001 CBI registered F.I.R. bearing crime No. RC BA
1/2001/A0027 against the said Officer and not against the complainant. On
19/07/2001 the Anticorruption bureau of CBI sent a team along with Mr.
Dubey to NCB Office along with recording device to trap the 3 Officers.
According to the complainant, though trap failed CBI has searched the NCB
Office till 20/07/2001 and prepared the panchanama about the same which
was subsequently illegally altered by the CBI Officers. The original
panchanama and altered version disclosed that office of the complainant was
never searched. The complainant was present during the search and being
Head of the Department pointed out number of irregularities about the CBI
teams, Modus Operandi and being Head as Zonal Director of NCB was not
furnished with the copy of the said panchanama and it was also tampered
one and he was superior in rank of CBI Officers present there. The tampered
original panchanama included certain imputations against the complainant
that he obstructs CBI Officers during the search. As per the complainant, due
to the exposure of modus operandi, the CBI wrote to the Director General
NCB to take action against the complainant that he had plans to plant drugs,
he implicates CBI Officers in false cases and therefore, on 03/10/2001 the
complainant was arbitrarily repatriated from NCB to his parent organization,
the Central Board of Excise & Customs. The complainant has challenged the
5 C.C.No.3359/SS/10
said order in OA No. 749/2001 on 22/10/2001 in the Hon’ble Central
Administrative Tribunal in Mumbai against CBI and Director General of NCB
and it was decided in his favour on 15/03/2002 who have filed Affidavits in
it and it also contains letters and orders of various authorities and that of
complainant also. The Union of India has also challenged the said order vide
Writ Petition No. 2262/2002 in Hon’ble Bombay High Court which was also
decided in favour of the complainant on 26/09/2003 in which case of the
respondent was that repatriation of the complainant was not punitive or
stigmatic and not with any punitive intent. The complainant has disclosed all
these facts to the representative of accused Nos. 1 to 6 at their Mumbai
Bureau office.
5. According to the complainant, after the raid on the NCB premises
by CBI on 19/20072001, on 22/07/2001 said Newspaper had published a
report titled “Narcotics Bureau man caught in CBI Net” regarding the same
incident and which is not having any false allegations or imputations against
the complainant. The complainant was himself made available to the local
office of the said Newspaper in Mumbai along with copies of all legal
pleadings and affidavits containing true facts of the incident of the said article
prior to publication of the same on 04/12/2001. The complainant was
shocked about the said News article and it did not refer the material supplied
by the complainant to the accused or present the complainant’s version of the
incident. The said Newspaper is subscribed to by the office of the complainant
where he was presently posted. The complainant and his colleagues read the
said edition and subsequently on the Web edition of the said Newspaper
which includes following imputations and innuendos against the complainant
viz.
6 C.C.No.3359/SS/10
i] “This time, the Mumbai Chief of the Narcotics Control Bureau (NCB), Ajay G. Ubale, a Customs Officer on deputation to NCB, is being investigated by the CBI and the Finance Ministry for alleged extortion and trying to frame an individual for drug trafficking.”
ii] “NCB investigators from Mumbai, in a report to the Finance Ministry, confirmed that Ubale tried to extort and book an innocent person.”
iii] “Dubey filed a complaint with the CBI alleging that the Zonal Deputy Director had demanded Rs. 5 lakh. The agency searched Ubale’s office and seized some documents.”
These three statements of the said article are totally false and accused have
knowledge about the same. Mr. Dubey in his F.I.R. did not make allegations
of extortion or alleged framing against the complainant. The allegations
made in the article are not based on any of the letters, orders and affidavits of
the concerned officers of the NCB and CBI. Further, there was no report of
NCB to the Ministry of Finance as alleged in the said article. The NCB Officers
have filed various affidavits in different Courts and none of them mentioned
any investigations by the CBI against the complainant. The article and its
heading deliberately mislead the reader and nowhere mentions that the
accused in the said case were others and the complainant’s name was
nowhere in the F.I.R. against the NCB Officers. The said article was published
with intention to harm the reputation of the complainant and the accused
having knowledge about the actual facts published the said article to harm
the complainant. After publication of the said article, the complainant was
inundated with calls from number of his acquaintances and colleagues
whether article was true. Thus the said article has harmed the reputation of
the complainant deliberately, maliciously and with malafide intention,
making grave and serious allegations being false one with the knowledge and
belief of the accused in order to lower complainant’s character in respect of
7 C.C.No.3359/SS/10
his professional and moral integrity.
6. The complainant contacted the Mumbai representative and
accused Nos. 3 to 5 at New Delhi office making numerous calls. In the
afternoon of 04/12/2001, the complainant contacted New Delhi office and
spoke to accused Nos. 3 to 5 and informed them about correct facts. The
accused No.5 asked the complainant to send his version by E mail and the
complainant did the same. He has also told accused No.5 that Mumbai
representative was apprised of true and entire picture. However, the accused
did not publish it and nor retraction of false and defamatory articles. The
complainant again contacted Mumbai representative and accused Nos. 3 to 5
about the order and Judgment of Hon’ble CAT dated 15/03/2002 that
vindicated the stand of the complainant in the incident. However, the accused
did not take cognizance of the attempts of the complainant to clear his name
and not chosen to publish a correction or retraction of the said article
containing defamatory matter. The accused hurts not only the personal
integrity, feelings and prestige of the complainant but that of his entire family
as well. He has also issued common notice to the accused Nos.1 and 3 to 6 on
17/03/2004 by R.P.A.D. However, the accused failed to reply to the same
and not compensated the complainant about the losses incurred by him nor
to publish a retraction. The said articles has tarnished the personal,
professional image and reputation of the complainant considerably and
lowered his esteem amongst his friends, peers and colleagues and also caused
him great pain and mental agony. The complainant read the said articles in
the copy available in his office of the Chief Commissioner of Excise, Central
Excise building, Mumbai. Further hard copy of the said newspaper is
distributed and sold in Mumbai in number of Newspaper outlets. The Web
8 C.C.No.3359/SS/10
version is also available in Mumbai on the Internet World Wide Web.
Therefore, the complainant has constrained to file the present case against
the accused Nos. 1 to 6 U/Secs. 500, 501 & 502 r/w. 34 and 114 of the I.P.C.
7. The process has issued against the accused Nos. 1 to 6 on
15/09/2004 U/Sec. 500, 501 & 502 r/w. 34 of the I.P.C. In response to the
process, the accused were appeared and released on the bail. The plea of the
accused came to be recorded on 01/09/2008 through their Ld. Advocate as
per Exh.4. The accused have pleaded not guilty to the same and claimed to
be tried. The statement U/sec. 313 of Cr.P.C. came to be recorded against
accused Nos. 1 & 2 as per Exhs. 67 & 69 respectively. The accused No.1 has
stated that at the relevant time her role was limited to formulation and
direction of Editorial policies of the company and she was never incharge and
responsible for the daytoday affairs of the Newspaper including selection,
editing, verification and approval of the news content of the Newspaper. The
accused No.2 has stated that he was not responsible for editing, selecting and
verifying each and every news article in first week of December2001 and he
has travelled to Japan on an official visit and he has not selected, edited and
verified News article Exh.15A and he was responsible being Editorinchief to
write editorial pieces and given overall directions to the policies of the
Newspaper and responsible for selection, editing major new articles of
National importance which were to be published in all editions. The
statement U/sec. 313 of Cr.P.C. came to be recorded against accused Nos. 3
to 6 at Exh.64. The accused No. 3 has stated that it was written in good
faith on the basis of the information received at that point of time. The
accused No.4 has stated that it was written in good faith and there was no
malafide and he never knew the complainant personally, therefore, question
9 C.C.No.3359/SS/10
of defaming him does not arise. The accused No.5 stated that he do not know
how his name was appeared and he did not aware of it. The accused No.6 has
stated that being a Publisher is a statutory appointment under the Sec. 5 of
the PRB Act and was not privy to whatever has gone to the print.
8. Hence, following points arise for determination and I have
recorded my finding thereon with reasons as under :
POINTS FINDINGS
i] Does the Complainant viz. Ajay Ganesh Ubale prove that on 04/12/2001 the accused in furtherance of their common intention have defamed him by making imputations published in their Daily newspaper Hindustan Times, New Delhi dated 04/12/2001 at page No. 9 to wit,i] “This time, the Mumbai Chief of the Narcotics Control Bureau (NCB), Ajay G. Ubale, a Customs Officer on deputation to NCB, is being investigated by the CBI and the Finance Ministry for alleged extortion and trying to frame an individual for drug trafficking”, ii] “NCB investigators from Mumbai, in a report to the Finance Ministry, confirmed that Ubale tried to extort and book an innocent person”, iii] “Dubey filed a complaint with the CBI alleging that the Zonal Deputy Director had demanded Rs. 5 lakh. The agency searched Ubale’s office and seized some documents” by means of writing, printing and publishing intended to harm the reputation of complainant and thereby committed an offence punishable U/Sec. 500 r/w. 34 of the I.P.C.?
In The Affirmative To The Extent of Accused Nos. 2 to
4 & 6
10 C.C.No.3359/SS/10
ii] Does the Complainant prove that on the above date and place accused in furtherance of their common intention printed and engraved the afore mentioned imputations in the article in the said Newspaper knowing or having good reason to believe that the same was defamatory and thereby committed an offence punishable U/Sec. 501 r/w. 34 of the I.P.C.?
In The Affirmative To The Extent of Accused Nos. 2 to
4 & 6
iii] Does the Complainant prove that on the above date and place accused in furtherance of their common intention sold the said Newspaper which contained the printed or engraved substance of the aforementioned imputations in the said article having defamatory matter knowing that it contained such matter and thereby committed an offence punishable U/Sec. 502 r/w. 34 of the I.P.C.?
In The Affirmative To The Extent of Accused Nos. 2, 3
& 6
iv] What Order? As per Final order.
R E A S O N S
9. To bring home the guilt of the accused, the complainant Mr. Ajay
Ganesh Ubale has examined himself as P. W. No.1 at Exh.10 to prove the
Article at Exh.15A published in Hindustan Times dtd. 04/12/2001, F.I.R. in
C.C.No. 50/CPS/2004 filed by CBI and written complaint of Mr. Navin Dubey
at Exhs.16A &17 respectively,copy of Writ Petition No.2262/2002 at Exh.
18, Article at Exh.19 published in Hindustan Times dtd. 22/07/2001,
Telephone bill at Exh.20, the details about phone numbers mentioned at
page No.19 of Hindustan Times dtd. 04/12/2001 is marked at Exh.21; and
his colleague P.W.No.2 Ramnath Prabhakar Murkunde at Exh.46. On behalf
of the defence the D.W.No.1Virendrakumar Charoria has examined at Exh.
70 to prove the resolution at Exh.71 and copy of minutes at Exh.72. The
11 C.C.No.3359/SS/10
bunch of certified copy of Hon’ble High Court is collectively marked at
Exh.41 having page Nos. 1 to 463 which consist of certified copy of order of
Govt. of India about appointment form of complainant at Exh.35, certified
copy of Press note issued by CBI is at Exh.36, certified copy of letter received
from Mr. Karan Sharma is at Exh.37, certified copy of letter received from
Mr. Gopal Achari is at Exh.38, Affidavitinreply filed by Mr. Manoj Pangarkar
before CAT is at Exh.39, rejoinder to the said affidavit is at Exh.40, certified
copy of Affidavit of Mr. Gopal Achari is at Exh.42, Affidavitinreply filed by
Asstt. Director of NCB Mr. C. P. Vijaydharan is at Exh.43, certified copy of
letter issued by complainant to Mr. Gopal Achari is at Exh.44, Affidavit of Mr.
Sarode is at Exh.45. The complainant has filed his written notes of
argument at Exh.80 and that of accused is at Exh.81.
AS TO POINT NOS.[i] TO [iv] :
10. It is argued by the Ld. Advocate of the complainant that
complainant/prosecution has succeeded to prove its case through the
testimony of complainant P.W.No.1 Ajay Ganesh Ubale and P.W.No.2 Ramnath
Murkunde supported by the documentary evidence. On the other hand, it is
argued by the Ld. Adv. of the accused that the Bombay Courts have no
jurisdiction to try the present case, the complaint is barred by the Section 19
of the Central Civil Services (Conduct) Rules,1954. He further urged that
contents of Exh.15A (Article) squarely come under the First and Second
Exception of Section 499 of the Indian Penal Code (In short the Code)
published in good faith and there is no evidence to suggest otherwise.
12 C.C.No.3359/SS/10
ON THE POINT OF JURISDICTION :
11. In the light of the above arguments in the outset it is necessary to
decide whether this Court has jurisdiction to try the present case in view of
the submission of Ld. Advocate of the accused by scrutinizing the evidence of
both the parties to that context. It is the submission of Ld. Advocate of the
accused that under section 499 of the Code which defines the offence of
defamation, it is abundantly clear that jurisdiction of the offence will be the
place where the publication of the article/defamatory material has taken
place in the nature of published/printed/read/heard. It is further submitted
that if the complainant wants that the present Court can try the matter than
he has to prove that Delhi Edition of newspaper 'Hindustan Times' dt. 4
December 2001 containing Article (Exh.15A) was read in Mumbai by the
persons he claims. My attention was attracted towards the testimony of the
complainant at page 2 paragraph 2, in which the complainant has stated that
he has received a phone call on 4/12/2001 from his colleagues who stated
that news article published in the newspaper which had mentioned
objectionable statements against him and showing him as a corrupt person
and then he went to his office at Churchgate on the same day at noon and
read the said news article. He then produced the said Hindustan Times
Newspaper as per Exh.15A. In cross examination the complainant has stated
that he was not aware whether Hindustan Times newspaper was printed in
Delhi and not in Mumbai and further the said newspaper had to be
subscribed and then same would be sent by air and such newspaper had to
bear the stamp of subscription and that the institute subscribing the same
would possess a receipt of the subscription. He denied that he has no material
to show that his Central Excise office was subscribing Hindustan Times
13 C.C.No.3359/SS/10
newspaper though failed to produce on record any subscribing receipt. It has
submitted by Ld. Advocate of the accused that complainant has not mention
in his evidence or in the complaint name of any of the colleagues who have
read the said article and his failure to examine any of his colleagues shows
that there were not such witnesses and there was no subscription of
newspaper to his office. The testimony of the complainant clearly shows that
after getting information about the publishing of the said article, he rushed to
his office and read the said Newspaper containing the said article. According
to the Ld. Adv. of the accused, it appears that if there is no subscription
receipt, it means there is no availability of the said Newspaper in the office of
the complainant. However, I do not agree with the submission of the Ld. Adv.
of the accused as mere nonproduction of subscription receipt does not mean
that complainant has not got opportunity to read the said Newspaper
containing the said article. It is not the case of the accused that the said
Newspaper was not at all available in Mumbai.
12. The complainant has examined P.W.No.2 Mr. Ramnath Prabhakar
Murkunde to support his case who was working with NCB, Mumbai Zonal
Unit as Intelligence Officer from December1998 to December1999 and for
his pending work, he used to visit NCB Office and during that period he met
with the complainant. According to him, he was informed somewhere around
July2001 that article has published in the said Newspaper regarding his
earlier place of work. Then in the evening he went and purchased the said
Newspaper containing the said article and according to him, said article
portrayed the complainant as Corrupt officer who is a person of impeccable
character and an honest man who had an unblemished record. In cross
examination, this witness has stated that he never subscribed to Hindustan
14 C.C.No.3359/SS/10
Times Newspaper in the year2001, further he had no knowledge whether
Incometax department where he was working was subscribing the said
Newspaper in the year2001. In crossexamination, he further stated that his
family have personal interaction with the complainant’s family at the time of
Diwali festival etc. and occasionally they meet outside and the complainant
have his Email address. He also stated that he had read the Orders of
Hon’ble Bombay High Court and the CAT when shown by the complainant.
Therefore, it has argued by the Ld. Adv. of the accused that the complainant
had examined this witness only to fillup the glaring lacuna on the point of
jurisdiction and this witness is a broughtup and afterthought witness only to
create a facade that the said article being read and published in Mumbai. The
Ld. Adv. of the accused next submitted that if this witness, being natural who
appears to be in touch with the complainant as he had perused the Order of
the Hon’ble Courts pronounced in the year 20012002, then why the
complainant did not mention his name as witness who had read the alleged
defamatory article in the Complaint and his evidence. Thus the evidence of
this witness is not believable who is close touch with the complainant who
had supplied the Orders of the Hon’ble Courts. On the contrary, if anyone
familiar or close with the other’s family, then certainly and naturally that
person would read the Newspaper containing such type of article. In
Complaint, the complainant has stated that his image and reputation was
lowered amongst his colleagues and friends. The present witness comes in
both the categories and the complainant has chose which witness out of them
to depose. Therefore, nonmentioning of his name in the Complaint and
evidence would not matter.
15 C.C.No.3359/SS/10
13. The another point to challenge the jurisdiction is argued by the
Ld. Adv. of the accused that as per the complaint that said article has
published on the Online Internet edition of Hindustan Times Newspaper and
available to the entire world. Though it has not stated in the complaint or in
the evidence the names of persons who had read the Online edition. In
continuance to the said argument, it is also stated that there is no Online
edition available on the Internet though what is available is an Epaper of
some of the popular Newspaper which is an exact replica of the hard copy of
printed and circulated throughout the City/Country and it is uploaded after
scanning on the Website of the Newspaper. Thus the Online edition of the
Newspaper is not the same thing as an Enewspaper. The complainant has not
produced any print out of the Newspaper dtd. 04/12/2001 as published on
the Internet on 04/12/2001. Thus the complainant has failed to establish that
the Enewspaper or socalled Online edition of the said Newspaper containing
said article was published or available for viewers at large. Therefore, his
mere statement about Online edition cannot be accepted which is against the
Sec. 65 B of the Indian Evidence Act which stipulates that, “in order to
reply on any electronic record. The printout of said electronic record shall be
accompanied by an Affidavit by the person relying on the said evidence,
satisfying the contents as listed in Section 65 B of the Indian Evidence Act.”
14. The accused have examined D.W.No.1 Mr. Virendrakumar
Charoria who is working as Director and Company Secretary of Hindustan
Times Ltd. in their defence who was crossexamined on behalf of the
complainant on the point of Internet edition of HT Ltd. He stated that he is
not aware when Internet edition of HT Ltd. started and unable to comment
16 C.C.No.3359/SS/10
whether there was any Internet edition in the Year2001 and whether there
was any resolution about the same. He was shown ‘Red Herring Prospectus’
marked at Exh.73 and its page No. 69 which shows that in the Year1997
News website ‘hindustantimes.com’ was launched. Admittedly, there is no
printout, if any, of the said Internet edition of Hindustan Times Ltd. was filed
on record on behalf of the complainant. The Exh.73 i.e. Red Herring
Prospectus shows that News website of the said Newspaper was launched in
the Year1997. Mere launching of News website does not mean that in the
year2001 news edition of the said newspaper was in existence on the
Internet without having proof on record in the nature of its Internet printout
as per Sec. 65 B of the Indian Evidence Act. Therefore, I am in agreement
with the Ld. Adv. of the accused that complainant has failed to establish that
said news article was published in the Internet edition.
15. Thus in respect of jurisdiction of this Court, it has came on record
that the complainant and P.W.No.2 Mr. Ramnath Murkunde have read the
Hindustan Times Newspaper dtd. 04/12/2001 containing the said article in
Mumbai and it was available and circulated in Mumbai. Therefore, even
though the complainant has failed to prove about Online Internet edition of
the said Newspaper, in view of the above facts this Court has every
jurisdiction to try the present case.
APPLICABILITY OF CENTRAL CIVIL SERVICES (CONDUCT) RULES, 1964.
16. It is contended by the Ld. Adv. of the accused that Central Civil
Services (Conduct) Rules, 1964 is applicable to the complainant as he is
employed by the Central Government. The complainant in his cross
17 C.C.No.3359/SS/10
examination has admitted that these rules are applicable to him. Therefore, it
is necessary to refer the said rule which runs as under :
“Rule19: Vindication of act character of Government Servant(1) No Government servant shall, except with the previous sanction of the Government have recourse to any Court or to the press for the vindication of any official act which has been the subjectmatter of adverse criticism or an attack of a defamatory character.” [Provided that if no such sanction is received by the Government servant within a period of three months from the date of receipt of his request by the Government, he shall be free to assume that the permission as sought for has been grant to him.]
In connection with the above rule, it is urged by the Ld. Adv. of
the accused that official act was the subject matter of the adverse criticism in
the said news article which contains raid by CBI and other particulars which
according to the complainant, is false, made against the public servant in
respect of his conduct in discharging public function or official act. It is next
urged that no previous sanction was taken by the complainant for the present
case and stated that accused have filed Criminal application No. 4603/2008
U/sec. 482 of the Cr. P.C. in which same issue i.e. want of sanction was raised
which came to be dismissed by the Hon’ble Bombay High Court. Being
aggrieved, against it the accused had filed S.L.P. bearing No. 4310/2009
before the Hon’ble Apex Court which was subsequently withdrawn by the
accused in which Hon’ble Apex Court has observed that, “as and when such
issues are raised before the trial court, the same shall be considered in
accordance with the law”. Therefore, it is argued by the Ld. Adv. of the
accused that in the absence of previous sanction by the complainant, the
Complaint ought to be dismissed. On the other hand, it is argued by the Ld.
Adv. of the complainant that Rule 19 is having no applicability in the present
case.
18 C.C.No.3359/SS/10
17. On perusal of Sec.199 of Criminal Procedure Code the person
who is public servant of Union or State on his behalf the Public Prosecutor
may file the complaint in writing before the Hon’ble Sessions Court. Further
Subsec. 6 shows that the said person has also right to file the complaint
before the Magistrate against the said offence. It means as per the Criminal
Procedure Code, the public servant through Public prosecutor may file the
complaint before the Hon’ble Sessions Court or in his personal capacity may
file the private complaint before the Magistrate. Thus, there is no bar under
Cr. P. C. to file the complaint by a public servant in his personal capacity
before the Magistrate. Therefore, the rule 19 is the independent provision
apart from the Cr. P.C. and having no effect on it to file the private complaint.
Therefore, the present complaint is maintainable and does not suffer from
lacuna that the complainant has not taken previous sanction to file the
present complaint.
WHETHER ARTICLE EXH.15A PUBLISHED IN HINDUSTAN TIMES NEWSPAPER DTD. 04/12/2001 IS DEFAMATORY ONE :
18. In the instant case, one Article was published on 18/07/2001 in
the said Newspaper as per Exh.19, however it was not disputed one. It is the
case of the complainant that another Article Exh.15A published in
Hindustan Times Newspaper dtd. 04/12/2001 contains three defamatory
statements/imputations of the complainant which had tarnished his personal
and professional image and reputation of the complainant considerably and
lowered his esteem among his friends, peers and colleagues. Hence, it is
necessary to reproduce exactly the said Article containing defamatory
imputations. The following is the scanned copy of the Article Exh.15A.
19 C.C.No.3359/SS/10
The Scanned Copy of the Article Exh.15A for ready reference is
as under :
==============SCANNED COPY==================
20 C.C.No.3359/SS/10
19. On the other hand, the Ld. Adv. of the accused has submitted that
contents of Exh.15A squarely comes under the first and second Exceptions of
Sec.499 of the Indian Penal Code. In view of the rival contentions of both the
parties, I takeup these three statements which are the bone of contention
one by one to evaluate and assess to arrive whether these
statements/imputations are defamatory one or not and whether it comes
under the abovesaid Exceptions.
20. The first one is :
(i) “This time, the Mumbai chief of the Narcotics Control Bureau (NCB), Ajay G. Ubale, a Customs officer on deputation to NCB, is being investigated by the CBI and the Finance Ministry for alleged extortion and trying to frame an individual for drug trafficking.”
It is argued on behalf of the complainant that aforesaid statement is
completely false and there is no basis for such statement being written in the
said Article. On the contrary, on behalf of the accused it is submitted that
aforesaid statement is factually correct and based on facts and material that
were available till that period of time and my attention was diverted to the
examinationinchief of the complainant in which he has admitted that,
“Thus Zonal Director is a Head of the department and his duty primarily was in the nature of supervision. Supervisory duties include administrative functions for ensuring the administration of the office on the daytoday basis ensuring that the Investigation carried out by the lower officers was conducted timely and impartially and coordination of work between Bombay office with the Head quarter and other enforcement agencies located in Bombay.” He further admitted in crossexamination in paragraph No.23 that there were several officers under him in NCB who were carrying out investigations. It is further admitted that his role was to supervise and give guidance to various officers making investigations and in para 24 he further admitted that, “in the evening of 19th July, 2001 the CBI has sent Mr. Navin Dubey to NCB office along with a recording device and that further at
21 C.C.No.3359/SS/10
around 8.15 p.m. 15 to 20 officers of CBI came to the NCB office to carry out a search. The Complainant had further admitted that out of 15 to 20 officers he allowed entry to only 3 of them. He further admitted that he did not allow the panchas as well as other officers to enter the office as they did not disclose their identity.”
21. It is next submitted that complainant in his crossexamination at
paragraph No. 25 admitted that CBI has issued Press Note dtd. 25/07/2001
as per Exh.36 that, ’CBI is looking into all aspects of the case and expects to
unearth more evidence about what looks like a racket of extortion’. The
reliance is also placed on Exh.37 is a letter dtd. 27/07/2001 under signature
of Mr. Karan Sharma who had instructed the complainant that the DG, NCB
had issued directions to the Complainant that before making any further
arrest in the case instituted by NCB in which Navin Dube’s role was
investigated by NCB, the sanction of the DG’s office was to be taken. The
reliance is also placed on Exh.38 which is a letter dtd. 30/07/2001 issued by
complainant’s Superior officer Mr. Gopal Achari, the Director General of NCB
and urged that from the tenor of this letter, it is abundantly clear that the
Superior officer of the complainant was questioning the complainant’s tactics
and motives for the manner in which the complainant had carried out an
investigation in Navin Dube matter registered with NCB and expressed his
disapproval of the conduct of the complainant whilst dealing with the CBI on
19/07/2001.
22. The further reliance has placed upon Exh.39 which is an affidavit
dtd. 10/12/2001 of Mr. Manoj Pangarkar filed before the Hon’ble CAT,
Mumbai bench in O.A.No. 749/2001 and harp upon the contents of affidavit
at page No. 163 that there was an attempt by the complainant to misuse the
NDPS Act and his official position and arrest an innocent person under NDPS
22 C.C.No.3359/SS/10
Act. In the last paragraph at page No. 164 Mr. Manoj Pangarkar has further
stated that the complainant wanted to fully protect the wrongful actions of
his subordinates and had attempted to conceal incriminating objects and that
further the complainant had interfered with the CBI investigation. A further
statement has been made in the same paragraph that the complainant in
order to protect his image as a responsible officer got the three accused
officer repatriated in 24 hours. Mr. Pangarkar has further stated that he
observed that the complainant had friendly and protective behaviour with the
three officers. The whole affidavit read as a whole clearly suggests that the
complainant’s role in the framing of Navin Dube is an NDPS matter was
suspect and that the CBI officers were investigating his role. The reliance was
further placed on Exh.44 is a letter dtd. 28/07/2001 issued by the
complainant to Mr. Gopal Achari in which at para 7 the complainant states
that, ‘it appears that CBI is attempting to investigate the NCB investigation in
the present case of Mandrax factory. I also have reports that an attempt is
being made to look into the investigation of the Fardeen Khan case’.
Therefore, it is argued by the Ld. Adv. of the accused that complainant who
was Zonal Director at the time of Fardeen Khan case, the two accused one
Nasir and Gomes were arrested along with Fardeen Khan and they made
statements before Trial Court that they were forced to give confession and
beaten up in the custody and falsely implicated in order to save Fardeen Khan
and that investigation was also under the scrutiny of CBI. The reliance also
was placed on Exh.40 which is an Affidavit filed by the complainant before
the Hon’ble CAT in which at para 17 the complainant has stated that, CBI
has sent a report to Mr. N. S. Sarvade, S. P. CBI, Mumbai expressing grave
doubts that the complainant may try to implicate CBI officers in false cases
23 C.C.No.3359/SS/10
and also could arrest Dube.’
23. In view of the contents of Exh.36 – CBI Press Note; Exh.37 –
Letter of Mr. Karan Sharma; Exh.38 – Letter of Shri Gopal Achari, DG, NCB;
Exh.39 – Affidavit of Mr. Manoj Pangarkar, Dy. S.P., CBI; Exh.40 – Affidavit
inrejoinder of the complainant and Exh.44 – Letter of Shri Gopal Achari,
DG, NCB, it is argued by the Ld. Advocate of the accused that it establishes
that act and omissions of the complainant was under CBI Scanner and CBI
and NCB itself under the Finance Ministry were investigating and enquiring
into the complainant’s role to frame individuals including Mr. Navin Dube
and CBI officers in false case. Therefore, in the light of this overwhelming
material the first statement appearing in the News article Exh.15 A is
substantially true and factually correct. ‘
24. On the other hand, the complainant has also relied upon Exh.45
at page No.255 in respect of the contents of the Affidavit that,‘The
investigation which was being carried out was in pursuance of the complaint
received against three officers of the NCB and said investigation was not at all
against the applicant’ and at the page No. 256 of the same exhibit that, ‘It
will further be appreciated that the complaint pursuant to which the
investigation were taken up was not against the applicant, and the applicant’s
conduct was not being enquired into’. Further relied on Exh.39 at page No.
158 para No.4(h) in regard to the contents that, ‘To briefly mention the
background, Shri Navin Chandra Dubey had lodged a complaint with CBI
again three NCB officers, stating that he was illegally detained, assaulted and
threatened with false implication in the Narcotics case if a sum of Rs. 5 lakh
was not paid to the three FIR named officers as bribe. On receiving this
24 C.C.No.3359/SS/10
complaint in the Anti Corruption Branch, CBI, Mumbai on 180701 a regular
case was registered against three NCB officers and investigation was taken up
by Shri Naveen Goyal, DSP.’
25. In view of the forgoing reliances placed upon by both the sides on
the letters/correspondence and affidavits, it is necessary to analyze them in
the context of first statement. The Exh.36 is CBI Press Note and on plain
perusal of it does not mention the name of the complainant and only contents
that CBI is looking into all the aspects of the case and expects to unearth or
get more evidence about what would look like a racket of extortion and it
contains the allegation against three NCB officers who had demanded bribe
of Rs. 5 Lakhs from the complainant i.e. Mr. Navin Dube in CBI’s case. The
Exh.37 is a letter of Mr. Karan Sharma from the Finance Ministry only shows
that the complainant i.e. Mr. Ajay Ubale was restrained from making further
arrest of their NCB case and prior to arrest he has to furnish details of
investigation/evidence to NCB Headquarter for evaluation. The letter Exh.38
of Shri Gopal Achari, DG, NCB is in the nature of asking/getting
clarification/explanation from the complainant in respect of Navin Dube’s
case. Further, the letter Exh.44 issued by the complainant to Shri Gopal
Achari, DG, NCB shows that there was attempt by CBI to investigate upon the
NCB investigation in the matter of Mandrax factory and also of Fardeen
Khan’s case. However, none of the contents of the aforesaid letters and Press
note directly indicates that the complainant Mr. Ajay Ubale though his office
was under investigation, his actual involvement in the alleged extortion and
trying to frame an individual for drug trafficking.
26. The another vital question is posed before me whether the
25 C.C.No.3359/SS/10
contents of the affidavit filed before the Hon’ble CAT proceeding can
substitute or takes place of oral testimony and, therefore, it required to be
weighed on different footings & parameters altogether in that context.
Admittedly, in the instant case the defence has relied on the contents of the
affidavit of Mr. Manoj Pangarkar at Exh.39 and Exh.40 affidavitinrejoinder
filed by the complainant. It is useful to refer the definition of Evidence as
defined in the Indian Evidence Act, 1872 which runs as under :
“Evidence” ‘Evidence’ means and includes
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;(2) all documents including electronic record produced for the inspection of the Court;such documents are called documentary evidence.
In the case in hands, it is argued on behalf of the complainant
that though they relied on the affidavit it is their contention that it cannot be
read into evidence unless and until the maker of these affidavits come before
the Court and undergone through the crossexamination. Admittedly, Exh.39
and Exh.40 are the affidavits filed before the Hon’ble CAT. According to
Exh.40 which is an affidavit of complainant himself in which he has stated
that Mr. N. S. Saravade has sent a report making grave doubts about the
complainant and Exh.39 is an affidavit of Mr. Manoj Pangarkar making
allegation against the complainant. However, their contentions/allegations of
the affidavits are in the nature of their opinion unless and until it converts
into oral evidence and it requires that these persons should step into the
Witness box and their contentions, if any, should pass the test of veracity as a
witness in crossexamination. As per the definition of Evidence, oral evidence
should be the statements made before the Court and, therefore, the contents
26 C.C.No.3359/SS/10
of affidavit made before any Forum or proceeding cannot replaces the ocular
testimony before the Court. Even as per Sec. 145 of the Indian Evidence Act,
if witness has made any statement he can be contradicted without showing
such statement to him in crossexamination. It means that in that particular
situation also witness should be present in the Witness box. In the instant
case, the makers of affidavits are not examined as a witness on behalf of the
defence. Therefore, in view of this legal position, the contents of affidavit
without examining the makers of it cannot and could not takes place or
substitute the oral evidence and in such circumstances the affidavit cannot be
considered and read into evidence and consequently, no evidentiary value can
be attached to it. Thus, I hold that Exhs.36, 37, 38 & 44 which are the letters
exchanged between the complainant and his Superior officers does not
contain any material to show that complainant was investigated by CBI and
Finance Ministry for alleged extortion and trying to frame an individual for
drug trafficking. Therefore, the first statement is nothing but an imputation
and which is a perse defamatory one of the complainant.
IN RESPECT OF SECOND STATEMENT IN ARTICLE EXH.15 A
27. The second statement is that :
(ii) ‘NCB investigators from Mumbai, in a report to the Finance Ministry, confirmed that Ubale tried to extort and book an innocent person’.It is argued by the Ld. Adv. of the complainant that above statement is
completely false, baseless and per se defamatory and accused have
deliberately used the word “confirmed” so as to show that the said statement
was authentic though they unable to produce before the Court, the report
claiming that, “Ubale tried to extort and book an innocent person”. It is
further argued that existence of a report on the basis of the affidavits filed
27 C.C.No.3359/SS/10
before the Hon’ble CAT is mere presumption and there is no basis for such
presumption. The Affidavit dtd. 01/01/2001 at Exh.43 of Mr. C. P.
Vijaydharan, Asstt. Zonal Director, NCB, Mumbai containing statement in
para 13 that, “the applicant was trying to falsely implicate the said Dube in
the said case” and statement in para 22 that, “the manner in which said
Dube was sought to be implicated” came to be in existence on 01/01/2001
and what not in existence at the time of publishing the article Exh.15A dtd.
04/12/2001. It is further submitted that the aforesaid statements of Mr. C. P.
Vijaydharan are his personal views and mere opinion and cannot be accepted
without following due process of leading evidence and allowing to be cross
examined. On the other hand, the defence has also relied on the very
Affidavit filed before the Hon’ble CAT. In crossexamination the said affidavit
was shown to the complainant and then it was marked at Exh.43 who
admitted that it was filed before the Hon’ble CAT. It is submitted on behalf of
the defence that in para 7 of the said affidavit, it is stated that an assessment
was being made by the Mumbai Zonal Unit of the role/conduct of the
complainant and the same was being sent to the Revenue Secretary. Further
the sum and substance of paragraph Nos. 9 & 12 in which it has been stated
that the complainant has concealed the detention of Mr. Dube from the Head
quarter. In para 13, it has been stated that after going through the letters sent
by the complainant, it was found that there was no prima facie case made out
against Navinchandra Dubey and it was apparent that the
applicant/complainant was trying to falsely implicate the said Dube in the
said case. By relying on this, it is submitted that sequitur to these statement
inaffidavit is that the complainant was trying to falsely implicate and it
would be for the sole purpose of extortion otherwise why would a senior
28 C.C.No.3359/SS/10
officer like complainant consciously implicate an innocent man when he has
knowledge that man is innocent. The reliance also placed on Exh.42 is an
affidavit of Mr. Gopal Achari, DG, NCB before the Hon’ble CAT wherein he
has stated that he had issued directions to his subordinates to submit all
material and evidence collected by the complainant before making any arrest
with the view to ensure that no innocent person is harassed and/or arrested
in any manner whatsoever. He further stated in it that CBI officers had
expressed an apprehension that Navin Dube could be arrested by the NCB,
Mumbai pursuant to Navin Dube’s F.I.R. filed with CBI and that also the CBI
officers may also be implicated in false cases by the complainant. In para 4
the said affidavit, it has been further stated that he has sent report to the
Union of India in respect of the applicant/complainant which was in the
Confidential file.
28. Therefore, it is argued by the Ld. Adv. of the accused that there is
nothing to indicate that the report did not contain the finding that the
complainant had tried to extort and book an innocent person. The
complainant has also admitted in his evidence that the Confidential report
submitted by Mr. Gopal Achari. It is next argued that Exh.41 colly. is a bunch
of various documents and affidavits in which Exhibits were given to the
correspondence and affidavits separately and can be read into evidence as
every affidavit as well as document were confronted with the complainant in
his evidence and he has not denied the same and this is the only forum in
which affidavits have minutely gone through and the complainant has given
opportunity to explain the same.
29. In respect of second defamatory statement accused have relied on
Exh.43 i.e. the affidavit of Mr. C. P. Vijaydharan and Exh.42 i.e. the affidavit
29 C.C.No.3359/SS/10
of Mr. Gopal Achari. At the time of assessment/evaluation of the first
defamatory statement in Article Exh.15 A in the foregoing paras, I have
already elaborately held that unless and until the maker of the affidavit
comes before the Court and depose and after the test of his veracity in cross
examination, it attains the status of ocular evidence. It is also important to
mention here that except these affidavits there is no report on record on
which the accused have relied. Therefore, the complainant has succeeded to
prove that the second statement is also nothing but an imputation and which
is a perse defamatory one of the complainant.
IN RESPECT OF THIRD STATEMENT IN ARTICLE EXH.15 A
30. The third statement is that :
(iii) “Dubey filed a complaint with the CBI alleging that the Zonal Deputy Director had demanded Rs. 5 Lakh. The agency searched Ubale’s office and seized some documents.”
It is argued by the Ld. Advocate of the complainant that the evidence
available on record shows that there was no complaint, no F.I.R. and no
inquiry was carried out against the complainant Ajay G. Ubale and, therefore,
the aforesaid statement is none other than a false and per se defamatory of
the complainant. The reliance was placed on certified copy of the F.I.R. filed
by the CBI against the three officers in C.C.No. 50/CPS/2004 and Exh.17 a
written complaint of Navin Dubey does not specify or mention the name of
complainant Ajay G. Ubale, therefore, the statement published in the article is
false. It is next argued that Article dtd. 04/12/2001 also states that, “While
the issue has snowballed with Ubale moving the Central Administrative
Tribunal” and, therefore, at the time of publishing the said Article the accused
No.4 was aware of the petition before the CAT though he has not taken care
to verify the facts. Therefore, the third statement is also false and defamatory
30 C.C.No.3359/SS/10
one. On the contrary, it is argued by the Ld. Adv. of the accused that
complainant has to prove that third defamatory statement pertains to him to
show that Zonal Deputy Director means only him and nobody else and relied
on Exh.35 which is an Appointment letter admitted by the complainant that
he was appointed as the Zonal Director. It is next submitted that the sentence
read as, “the agency searched Ubale’s office and seized some documents.
The author i.e. Accused No.4 has used Ubale’s name for this sentence but not
for the sentence that precedes it.” In crossexamination, a question was put
to the complainant that in the third statement reference is of a Zonal Deputy
Director and not to the complainant and in entire affidavits and submissions
before various Forums Tribunals and Courts, the complainant described
himself as the Zonal Director, therefore, the complainant has failed to
establish beyond reasonable doubt that the Zonal Deputy Director is none
other than the Zonal Director. Thus, the identify of a person as the Zonal
Deputy Director came to be challenged.
31. On behalf of the complainant, it is submitted that Article Exh.15A
referred to the complainant i.e. ‘Ajay Ganesh Ubale’ as ‘Ajay G. Ubale’, ‘Ubale’,
‘Ubale’s’ which clearly established that Article referred to the complainant i.e.
Ajay Ganesh Ubale and nobody else. It is further submitted that Zonal Deputy
Director means not the complainant Ajay Ganesh Ubale is not true because
the immediate next sentence is “the agency searched Ubale’s office and seized
some documents” and identification of ‘Ubale’ is given in the Article in
another sentence as “the Mumbai chief of the Narcotics Control Bureau
(NCB), Ajay G. Ubale, a Customs officer on deputation to NCB”. In the
instant case, the Exh.41 colly. i.e. bunch of affidavits and other relevant
documents relied by the accused also contain on the page No.74 the news
31 C.C.No.3359/SS/10
published by the Newspaper Times of India and its first para commenced with
the words, “The abrupt repatriation of Ajay Ubale, the controversial zonal
deputy director of the Narcotics Control Bureau (NCB) to his parent cadre,
the Central of Excise and Customs (CBEC) on Friday is being seen as a major
victory for the Central Bureau of Investigation (CBI)”. In crossexamination
on page No.26, the complainant has answered to the question that, “The
N.C.B. Zonal office had two officers with the word Director suffixed i.e. one
was Zonal Director and another was Asstt. Director. The Zonal Director is of
equivalent rank as Dy. Director in the NCB Headquarter and, therefore, Zonal
Director also referred as Dy. Director or Zonal Dy. Director or Zonal Director”.
Had it been the case of the accused that Zonal Deputy Director does not mean
the complainant himself, than certainly the burden is cast upon the accused
to prove that there is a person working on the post of Zonal Deputy Director
apart from complainant and there is no similarity between the post of Zonal
Director and Zonal Deputy Director to which they fail. Therefore, in view of
the testimony of the complainant, Article published on page No. 74 and
accused have failed to prove that there exist a person working on the post of
Zonal Deputy Director separately from the complainant. Therefore, the
reference of Zonal Deputy Director in the third statement is none other than
to the complainant only and Zonal Deputy Director and Zonal Director are
one and the same post on which the complainant was working at the relevant
time.
32. Now, if we minutely peruse the third statement, it shows that
Dubey has filed complaint with CBI alleging that Zonal Deputy Director
demanded Rs. 5 Lakhs and and undisputedly the name of complainant Ajay
G.Ubale has not mentioned in the F.I.R. lodged by CBI and in written
32 C.C.No.3359/SS/10
complaint given by Navin Dubey of which certified copies are on record at
Exhs.16 & 17 respectively. Therefore, it is clear that the initial part of the
statement i.e.“Dubey filed a complaint with the CBI alleging that the Zonal
Deputy Director had demanded Rs. 5 Lakh” being imputation in the nature of
innuendos i.e. where the statement does not refer to the complainant directly
the doctrine of innuendo may be pressed into service for the purpose of
showing that the complainant was the real target of the attack, is certainly
per se defamatory of the complainant. However, the suffixing part of the said
statement is not defamatory as admittedly CBI has conducted search in the
office of the complainant.Thus, the complainant has established that first part
of the third statement contains imputation which is defamatory to the
complainant.
33. As I have held that three statements containing Exh.15A
published in the Hindustan Times Newspaper being imputations of the
complainant, it is necessary to go through the first and second exception of
Sec.499 of the I.P.C. as submitted by the Ld. Adv. of the accused that contents
of Exh.15A squarely comes under these Exceptions. Hence, it is useful to
refer here the definition of ‘Defamation’ along with its relevant Exceptions.
Section 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
33 C.C.No.3359/SS/10
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.—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.
First Exception. —
Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception. —
Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
34. It is argued by the Ld. Adv. of the accused that as per the first
exception any imputation made which is true concerning any person, if it is
for public good that such an imputation should be made or published, it
would not amount to the offence of defamation. The complainant is an IAS
Officer deputed as a Zonal Director of NDPS, being public servant, his acts
and omissions are directly concern with the public good who was under the
CBI Scanner against whom Confidential reports made to Finance Ministry,
then public, at large, would have a right to know about this and Newspapers
34 C.C.No.3359/SS/10
and Journalist would have a right to publish such a story. The Ld. Adv. also
tried to take assistance from the second Exception that there is no defamation
to express in good faith any opinion whatever the conduct of a public servant
in discharge of his public functions. It is next argued that whatever has been
published is factually correct.
35. At the time of dealing with the three statements being
imputations, I have stated that mere correspondence and PressNote of CBI
does not specifically or directly mentions the name of complainant that he
was investigated by CBI and Finance Ministry for the alleged extortion and
trying to frame an individual for drug trafficking and there was no report on
record having confirmation that the complainant trying to extort and book an
innocent person. Even F.I.R. lodged by CBI and written complaint given by
Mr. Navin Dubey does not name the complainant that he has demanded Rs. 5
Lakhs from Dubey. Mere statements made by deponents in their affidavits are
not sufficient, unless they stand in the Witness box and their testimony
should pass through the test of crossexamination. If all the above facts are
absent, then how it can be termed that these three imputations are true in
nature and published in good faith showing conduct of the complainant.
Therefore, I am not in agreement with the arguments advanced on behalf of
the Ld. Adv. of the defence that the contents of Exh. 15A comes under the
First and Second exceptions of Sec.499 of the Code.
36. As three imputations does not come within the purview of First
and Second exception of Sec. 499 of the Indian Penal Code which now leads
me to deal with the issue whether accused are jointly or individually
responsible for the offence of defamation that has been committed against
the complainant by publishing an Article at Exh.15A in Hindustan Times
35 C.C.No.3359/SS/10
Newspaper dated 04/12/2001.
ON WHICH ACCUSED WHAT RESPONSIBILITY LIES :
37. Accused No.1 – Shobhana Bhartia : As per the complaint she is
Vice Chairperson and Editorial Director. In relation to the accused No.1
Shobhana Bhartia, P.W.No.1 complainant has deposed in his evidence that,
“Regarding the names of accused Nos. 1 & 5 i.e. Mrs. Shobhana Bhartiya and Ms. Kumkum Chhadda respectively, I say that on 04/12/2001 I had spoken on telephone to the accused No.3. After listening to me, he did not agree with me but asked me to speak to accused No.5 Ms. Kumkum Chhadda who was the Subeditor incharge of selection of news articles coming from outside New Delhi. After speaking to the accused No.5 and thereafter with accused No.4 when I found that they were unwilling to consider correct facts, I again spoke to accused No.3. He informed me that the accused No.2 was out of station and therefore, I could not speak to him. I, therefore, requested to know as to who was the next high person in charge of the Editorial matters of Hindustan Times Newspaper. He informed me that the Managing Editor Mrs. Shobhana Bhartiya presently accused No.1 was overall in charge of all Editorial matters”. He further deposed in para 9 that, “The designation of the accused No.1 in Hindustan Times was ViceChairman and Managing Editor and in her capacity as Managing Editor she was in charge of all the daytoday functioning of the newspaper including editorial control.”
38. The complainant in crossexamination at page 10 admitted that
he had no knowledge as to whether accused No.1 was the Executive Director
of HT Media Ltd. and as to whether accused No.1 was the Executivecum
editorial Director of Hindustan Times Ltd. and not of Hindustan Times
Newspaper. He also admitted that he had not seen any documents in this
regard. He is also ignorant about the role of accused No.1 providing over all
policy guidance to five publications owned and controlled by HT Media Ltd.
He is also unaware whether the accused No.1 is the Director of 19 Companies
out of which 13 Companies having their offices in the same premises in which
36 C.C.No.3359/SS/10
the office of Hindustan Times, Delhi was housed. The attention was drawn on
behalf of the complainant to the testimony of D. W. No.1 Mr. Virendrakumar
Charoria who has produced the Board Resolution dated 03/05/1994 marked
at Exh.71 wherein it was resolved that accused No.1 Shobhana Bhartia was
designated as ExecutivecumEditorial Director. The said resolution states that
as Editorial Director, she will give guidance or advice to the Editors/Executive
Editors of Dailies and periodicals in connection with the editorial policy of the
Company and the true copy of its minutes book is filed on record at Exh.72.
Therefore, it is argued by the Ld. Adv. of the complainant that the accused
No. 1 had a greater role to play editorial policies and editorial work of
Hindustan Times Newspaper run by company Hindustan Times Ltd. The
complainant also relied on the Exh.73 i.e. Red Herring Prospectus of the
company HT Media Ltd. to show that accused No.1 has been described as
ViceChairman and Editorial Director. However, the Red Herring Prospectus is
published on 18/07/2005 and we concern with the position of accused No.1
in respect of date 04/12/2001 and, therefore, to that extent the Red Herring
Prospectus Exh.73 have not come to much assistance to the complainant. We
have required to ascertain the role of accused No.1 prior to Year2001 or
during that period and not after the Year2001.
39. As per the true extracts of the Minutes at Exh.71 and true copy of
Minutes book at Exh.72 shows that as per the Resolution No.6 of the
meeting dt.03/05/1994 as Editorial Director, she (accused No.1) will give
guidance or advice to the Editors/Executive Editors of Dailies and periodicals
in connection with the editorial policy of the Company which certainly means
that she may give guidance in the broad aspect to the editorial policy i.e.
what was the editorial policy would be in respect of Dailies and periodicals
37 C.C.No.3359/SS/10
and not as contended by the Ld. Advocate of the accused in respect of the
editorial work to the extent of a particular newspaper i.e. Hindustan Times
and resolution clearly shows that her role is much wider and particularly in
regard with the editorial policy of all the dailies and periodicals.
40. It is argued by the Ld. Advocate of the defence that complainant
has failed to establish that accused No.1 was looking after the daytoday
affairs of the Hindustan Times Newspaper in the month of December2001 or
for the matter that show was involved in the selection, editing and
verification of the Article Exh.15A. Further that no presumption under
Section 7 of the Press and Registration of Books Act, 1987 against accused
No.1 can be drawn as her name does not appear anywhere in the newspaper
in the declaration column i.e Exh.21. As per the complaint accused No.1 is
Vice Chairperson and Editorial Director. Admittedly there is no copy of
declaration made under section 5 of the PRB Act is filed on record showing
the name of the accused No.1 as Editorial Director. I have also already held
that the accused No.1 was having the role of guiding on editorial policy and
taking actual part in the editorial work is altogether different and not similar
and separate from each other. In the instant case in respect of accused No.1
the complainant has only filed on record the telephone bill to show that he
has talked with the accused No.3 and 5 and in which reference of accused
No.1 had come. To that context I have also held that it shows only calls made
to the EPBX number to the Hindustan Times Limited and not that he has
talked with the accused No.5 and 3 who told the position of the accused No.
1. Thus there is no evidence on record that accused No.1 was having direct
involvement or even remotely in the process of selection, editing and
verification of the Article 15A published in Hindustan Times Newspaper
38 C.C.No.3359/SS/10
dt.04/12/2001 and she was having any editorial responsibilities of the news
articles published in the newspapers
41. Accused No.2 – Vir Sanghvi – Editor : In relation to the accused
No.2 Vir Sanghvi, the P.W.No.1 complainant in his evidence has produced
declaration under PRB Act, 1867 which has been marked as Exh.21 shows
the name of the accused No.2 as the 'Editor'. It is argued on behalf of the
complainant that accused No.2 was the editor of Hindustan Times at the
relevant time i.e. 04/12/2001 when the Exh.15A was published and name of
accused No.2 is listed as the Editor in the mandatory declaration prescribed
under the Press and Registration of Books Act, 1867 which is at Exh.21.
It leads me to see the relevant provisions of the Press and Registration of
Books Act, 1867 in which the interpretation of the editor is as “editor” means
the person who controls the selection of the matter that is published in a
newspaper.
The Section 7 of the Press and Registration of Books Act, 1867 states that:
7 . Office copy of declaration to be prima facie evidence.
In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declaration, [or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, [or printed on such newspaper, as the case may be] that the said person was printer or publisher, or printer and publisher(according as the words of the said declaration may be) of every portion of every [newspaper] whereof the title shall correspond with the title of the [newspaper] mentioned in the declaration, [or the editor of every portion of that issue of the newspaper of which a copy is produced].
39 C.C.No.3359/SS/10
42. It is, therefore, submitted by the Ld. Advocate of the complainant
that accused No.2 being editor was in full control of the selection of the
articles in the newspaper and hence responsible for the defamatory article
Exh.15A On the other hand it is argued by the Ld. Advocate of the accused
by taking assistance of the answers in crossexamination of the complainant
on page 13 and 14 that complainant has admitted in his crossexamination
that he had no knowledge that the accused No.2 was the EditorinChief of
Hindustan Times Paper for its Delhi, Kolkata, Lucknow, Patna and Ranchi
Editions. Further, he was not aware that the accused No.2 was in Japan with
the then Hon'ble Prime Minister during first week of December2001.
Therefore, it is consistent to the case put to the complainant in cross
examination that the accused No.2 was not present in India and it is also
stated by accused No. 2 in his statement Under Section 313 of Cr.P.C. that he
was not in India but was travelling with the then Hon'ble Prime Minister on
official duty to Japan. It is next argued that there is no provision in PRB Act
that for temporary vacation of office of Editor in case Editor travels out of
place of publication of any newspaper; whereas in case of temporary change
in place of printing there is specific provision to deal with such situation.
Meaning thereby the name of Editor is not changed in the newspaper, when
he is away from the place of publication of the said newspaper.
43. On the other hand, it is vehemently submitted by the Ld. Adv. of
the complainant that defence taken by the accused No.2 that he was traveling
and was actually on an official trip to Japan claiming thereby he is not
responsible is not available to him and reliance came to be placed on
40 C.C.No.3359/SS/10
8A. Person whose name has been incorrectly published as editor may make a declaration before a Magistrate If any person, whose name has appeared as editor on a copy of newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Subdivisional Magistrate and make a declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate after making such inquiry or causing such inquiry to be made as he may consider necessary is satisfied that such declaration is true, he shall certify accordingly, and on that certificate being given the provisions of section 7 shall not apply to that person in respect of that issue of the newspaper.
The Magistrate may extend the period allowed by this section in any case where he is satisfied that such person was prevented by sufficient cause from appearing and making the declaration within that period.]
44. The perusal of Sec.8 of the PRB Act clearly shows that, if any
person claims that he was not editor in the particular issue on which his
name is appeared as Editor, he can within two weeks after becoming aware of
the said fact make declaration contemplated under the said Section and then
after receiving certificate the provisions of Sec.7 will not apply to that person
in respect of that particular issue of the Newspaper. If, it is the case of the
accused No.2 that he was in Japan during the first week of December2001
and was not thereby responsible for the Article Exh.15A, he was required to
resort to Sec.8A of the PRB Act to get himself absolved from the
responsibility in respect of Article15A. However, it does not happen in the
present case. Therefore, submission of the Ld. Adv. of the accused that there
is no provision of temporary vacation of office of the Editor bears no
weightage.
45. The Ld. Advocate of the complainant placed reliance on the
citation of State of Maharashtra Vs. Dr. R. B. Chowdhary & 2 Ors. reported in
41 C.C.No.3359/SS/10
1968 AIR 110 in which it has been held that,
the term 'editor' is defined in the Act to mean a person who controls the selection of the matter that is published in a newspaper. Where there is mentioned an editor as a person who is responsible for selection of the material s. 7 raises the presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly was printed as the Editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper.
46. The Ld. Adv. of the accused further placed reliance on the ruling
in the case of K.M. Mathew Vs. K. A. Abraham & Ors. reported in AIR 2002
SC 2989 in which Their Lordships have observed in following paragraphs as
12. Section 5 of the Act prescribes certain rules regarding the publication of newspapers. It says that the newspaper shall contain the names of the owner and editor printed clearly on each copy and also the date of its publication. Sub section (2) of Section 5 further says that the printer and the publisher of every such newspaper shall appear in person before the District, Presidency or Sub divisional Magistrate and shall make a declaration that he was the printer or publisher or printer and publisher of that newspaper.
13. It is also pertinent to note that Section 8A of the Act provides that if any person, whose name has appeared as editor on a copy of a newspaper, may, within two weeks of his becoming aware that his name has been so published, appear before the District Magistrate and make a declaration that his name was incorrectly published in that issue as the editor thereof, and the Magistrate empowered in that behalf may conduct an inquiry and on such inquiry if it is found that the said person is not the editor of the newspaper, the Magistrate may issue a certificate to the effect that Section 7 will not apply to him.
14. A conjoint reading of these provisions will go to show that in the case of publication of any newspaper, each copy of the publication shall contain the names of the owner and the editor who have printed and published that
42 C.C.No.3359/SS/10
newspaper. Under Section 7 of the Act, there is a presumption that the Editor whose name is printed in the newspaper as Editor shall be held to be the Editor in any civil or criminal proceedings in respect of that publication and the production of a copy of the newspaper containing his name printed thereon as Editor shall be deemed to be sufficient evidence to prove that fact, and as the 'Editor' has been defined as the person who controls the selection of the matter that is published in a newspaper, the presumption would go to the extent of holding that he was the person who controlled the selection of the matter that was published in the newspaper. But at the same time, this presumption contained in Section 7 is a rebuttable presumption and it will be deemed as sufficient evidence unless the contrary is proved. Therefore, it is clear that even if a person's name is printed as Editor in the newspaper, he can still show that he was not really the Editor and had no control over the selection of the matter that was published in the newspaper. Section 7 only enables the court to draw a presumption that the person whose name was printed as Editor was the Editor of such newspaper, if the publication produced in the court shows to that effect.
15. The contention of the appellants in these cases is that they had not been shown as Editors in these publications and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as 'Editor' and there cannot be any criminal prosecution against them for the alleged libellous publication of any matter in that newspaper.
16. The contention of these appellants is not tenable. There is no statutory immunity against Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. In all these cases, the complainants have specifically alleged that these appellants had knowledge of the publication of the alleged defamatory matter and they were responsible for such publication; and the Magistrates who had taken cognizance of the offence held that there was prima facie case against these appellants. It was under such circumstances that the summonses were issued against these appellants.
20. The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had
43 C.C.No.3359/SS/10
knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper.
47. The aforesaid case laws on which reliance was placed by the
complainant are applicable in respect of the accused No.2. Therefore, the
accused No.2 being Editor of the Newspaper was having full control over the
selection of the article Exh.15A published on 04/12/2001 in Hindustan
Times and by going abroad he has not absolved himself from his
responsibility unless he obtains the exemption as per Sec.8A of the PRB Act
and, therefore, the accused No.2 is responsible for defamatory article
Exh.15A published against the complainant.
48. Accused No.3 – Arun Roy Chaudhary – Resident Editor : In
relation to the accused No.3 Arun Roy Chaudhary, it is argued by the Ld. Adv.
of the complainant that name of accused No.3 was mentioned in the
Statutory declaration Exh.21 being a resident editor of Hindustan Times
Newspaper (Delhi Edition) and being resident editor he is the member of
editorial team and equally responsible for selecting, editing and publishing
defamatory article contained in Exh.15A. The accused No.3 while answering
to question No.55 in his statement U/sec. 313 of Cr. P. C. has stated that, “I
do not want to say anything. This case is basically not against us and
whenever written is in good faith on the basis of information received at that
point of time”. This answer itself suggest that he is a part of editorial team.
49. The Ld. Adv. of the accused submitted that presumption under the
Press and Registration of Books Act, 1867, which is rebuttable presumption,
44 C.C.No.3359/SS/10
is available only for the word ‘Editor’. Thus everybody else mentioned in the
declaration with different heading like resident editor etc. will have no
presumption against them. Specific evidence will have to be lead to show that
the resident editor i.e. Accused No. 3 was in fact responsible for the selection,
verification and editing of the said article and, therefore, there is no role
attributable to him.
50. Admittedly, the name of the accused No.3 is mentioned as
resident editor in mandatory declaration in Exh.21 as per the Sec.5 of the
PRB Act. It is true that presumption is attached to the editor under the Sec. 7
of the PRB Act. However, as the name of the accused No.3 is in statutory
declaration being resident editor, then nevertheless he be named as resident
editor than the editor, he has presumed to have within his knowledge as to
whatever published in the Newspaper. It is also supported by his answer to
question No.55 as stated above. Therefore, the accused No.3 is one of the
part of the process of selecting, editing, verifying and publishing of the
defamatory imputations contained in Article 15A and he thereby makes
himself responsible for the same.
51. Accused No.4 – Sudhi Ranjan Sen – Author/Journalist : There is
no denial that the accused No.4 who is journalist is not the author of Article
at Exh.15A. This fact is also corroborated by the answer given by the accused
No.4 to question No.55 in his statement U/sec. 313 of Cr. P. C. has stated in
clear terms that, “It has been written in good faith on the information
available at that point of time & there is no malafide & I never know the
compltt. personally, therefore, the question of defaming him does not arise”.
45 C.C.No.3359/SS/10
In answer to the question No.14 U/sec. 313 of Cr. P. C. he has stated that he
has gathered this information from Sr. officers of CBI & NCB. However there
is no evidence on record in the nature of ocular testimony of these officers or
any material used by him at the relevant time. There is no evidence on record
which shows that due care and caution has taken while writing the said
impugned article. I have already held that these three statements contained
in Exh.15 A are per se defamatory imputations. Therefore, the accused No.4
who is author of the same is definitely responsible for writing the defamatory
imputations against the complainant.
52. Accused No. 5 – Kumkum Chadda – SubEditor : In relation to the
accused No. 5 Kumkum Chadda, it is argued by the Ld. Adv. of the
complainant that the accused No.5 was Subeditor in charge of news article
coming from outside Delhi and as the Article Exh.15A pertains to Mumbai,
she is responsible for the same. On the other hand, it is contended by the Ld.
Adv. of the accused that the name of accused No.5 is not mentioned in
Exh.21 and the complainant has described accused No.5 as Subeditor in the
complaint. According to the complainant, he has spoken with accused No.5
on telephone to that effect, I have already held that mere production of
telephone bills does not show that the complainant had actually spoken with
her. Thus, there is absolutely no material on record except the bare words of
the complainant that the accused No.5 has any role in selection, drafting,
editing of the defamatory imputations contained in article Exh.15A.
Therefore, by no stretch of imagination the accused No.5 can be held liable
and responsible for the impugned article published in Hindustan Times
Newspaper.
46 C.C.No.3359/SS/10
53. Accused No.6 – Rakesh Sharma – Printer & Publisher : In respect of
the accused No.6, it is not disputed that his name is mentioned in the
Statutory declaration Exh.21 as Rakesh Sharma, Printer & Publisher. The
accused No. 6 while answering to question No.55 in his statement U/sec.
313 of Cr. P. C. has stated that, “Publisher is a statutory appointment under
PRB Act Sec.5 and I was not a privy to whatever has gone in the print.” It is
argued by the Ld. Adv. on behalf of the complainant that accused No.5 cannot
seek exemption on the ground that he was unaware of the contents and as
held in Ramesh Chander V/s. State of Punjab reported in AIR 1966 Punj. 93.
The reliance also placed on that ‘Publisher of a news paper is responsible for
defamatory matter published in such paper whether he knows the contents of
such paper or not.’ Mc Leod, (1880) 3 All 342. Therefore mere fact that,
according to the accused, he was unaware or unknown in daily routine about
news item published in the newspaper, would not rescue the accused for the
publication of the news item in question when his name is also in the
mandatory declaration in Exh.21. Therefore, the accused No. 6 being Printer
& Publisher of the newspaper containing the article Exh.15A having
imputations, his also responsible for the same.
54. The Ld. Counsel of the accused has placed reliance on Vijayee Singh
and Others V/s. State of U.P. reported in (1990) 3 Supreme Court Cases 190
on the count of burden of proof, in which it is held that,
“In criminal cases the general burden of proof is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. The prosecution is not absolved of its duty of discharging the initial burden of establishing the case beyond all reasonable doubts even in respect of cases
47 C.C.No.3359/SS/10
covered by Section 105 of the Evidence Act.” It is further held that, the accused can also discharge the burden under section 105 by preponderance of probabilities in favour of his plea and not by merely creating a doubt.
55. However, in the instant case I have already held that mere
letters/correspondence does not establish by itself the imputations which are
perse defamatory of the complainant. Even the accused have failed to
examine the makers of the affidavits. The further reliance has placed on the
citation in the case of Chaitan Charan Das Vs. Ragunath Singh reported in
MANU/OR/0040/1959 and for the purpose of burden of proof. Therefore,
the above citations does not come to any assistance to the defence.
INTENTION OR KNOWLEDGE OF THE ACCUSED
56. It is argued on behalf of the complainant that accused have
intention and knowledge that by publishing the article containing
imputations in question in Exh.15A will harm the reputation of the
complainant and lower his character in respect of his professional and moral
integrity. On the other hand, it is argued by the Ld. Adv. of the accused that
one of the essential ingredients of Sec. 499 of the I.P.C. that the defamatory
statements /imputations have to be made with the intention of defaming the
aggrieved person or with the knowledge that the same is likely to defame the
aggrieved person. Thus in this section mensrea plays a vital ingredient and
the complainant fails to establish that any of the accused had any intention to
defame him. Therefore, reliance was placed upon the cases of Shri Vijay
Vishwanath Kuvalekar V/s. Shri Suresh Raghunathrao Kalkundrikar and
another reported in 2000(2) Mh.L.J. 90 and on Mamen Mathew V/s. M. N.
Radhakrishnan and Anr. reported in MANU/KE/0571/2007 for the purpose of
intention to defamation.
48 C.C.No.3359/SS/10
57. The definition of Defamation envisaged in Sec.499 of the I.P.C.
though reiterated, it is necessary to refer here, ‘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’. This definition in very clear terms has stated that even
knowledge or having reason to believe that such imputations will harm the
reputation of such person. Undisputedly, therefore, even the accused having
no previous enmity with the complainant or no acquaintance with the
complainant, they have every knowledge that imputations contained in
Exh.15A widely published in the Newspaper like Hindustan Times will harm
the reputation of the complainant. Thus knowledge is also one of the
ingredients plays an vital role in the case of defamation. Therefore, With due
respect to all the above cited cases relied on by the defence are not applicable
to the instant case considering the facts and evidence which is brought on
record.
58. The defence also relied on the cases of Prabhu Chawla and Ors
Vs. A. U. Sheriff 1995 Cri. L. J. 1922, Manu/KA/0078/1994 and V. S.
Achuthanandan Vs. G. Kamalamma & Anr. 2008 Cri L.J. 4221, ILR 2008 (2)
Kerala 582, Manu/KE/0106/2008 on the score of absence of positive
averments against accused. However, para 3 of the Complaint contains the
averments against each of the accused and according to complainant, role
played by each accused for the purpose of Article Exh.15A. Therefore, these
citations also, with due respect, does not come to the help of the accused.
49 C.C.No.3359/SS/10
59. The defence has also placed reliance on the cases of Tathagata
Satpathy and Anr. Vs. Priyabrata Patnaik and Anr. 2010 (II) OLR – 512;
H. K. Dua Vs. Chander Mohan, Dy. Chief Minister of Haryana – 2008 Cr. L. J.
2301, Manu/PH/0427/2008; Vivek Goenka Vs. State (N.C.T. Of Delhi) and
Anr. ILR (2009) Supp. (3) Delhi 502; Haji C.H. Mohammad Koya Vs.
T.K.S.M.A. Muthukoya – (1979) 2 SCC 8 and Ramesh Chand Aggarwal Vs.
State of Haryana – Pujab & Haryana High Court in Cri. Misc. No. M30154 of
2010 on the point of Presumption under the Press & Registration of Books Act
1867 – section 7. The observations in the abovecited rulings are applicable to
the extent and scope of accused Nos. 1 & 5 only and with due respect, not
applicable to the accused No. 2, 3 & 6 as names of these accused are
published in the Statutory Declaration in Exh.21 of the Newspaper
Hindustan Times and, therefore, presumption under Sec.7 of the PRB Act is
attached to them and as discussed earlier accused No.2, 3 & 6 have played
their role in respect of Article Exh.15A.
60. The defence has also placed reliance on the case of Aneeta Hada
Vs. Godfathers Travels and Tours Pvt. Ltd. (2012) 5 SCC 661 on the count of
Mandatory Requirement of impleading company as one of the accused. This
citation relates to the cases exclusively filed under Negotiable Instruments
Act, 1881, which is a special law for the purpose of dishonour of negotiable
instruments and, therefore, it has not relevance at all to the cases filed under
defamation like the present one. Therefore, with due respect, it is not
applicable to the present case in hands.
61. In the instant case the three statements contained in the Article
Exh.15A are per se defamatory of the complainant. The complainant is an
IAS Officer. His father and fatherinlaw were retired as Inspector General of
50 C.C.No.3359/SS/10
Police of Maharashtra cadre, the complainant’s brother is an IAS Officer
serving Under Secretary in Govt. of Maharashtra. His wife is a practicing
Doctor which shows that the complainant hails from an educated & well
reputed family. The defamatory imputations of the complainant have
certainly affected on the reputation of the complainant and his esteem was
lowered down in the eyes of family members and colleagues. The name and
fame is everything for any person and one single incident may vanish or
tarnish the same. The defamatory imputations published in the Newspaper
are likely to be read by public at large who even not knowing the
complainant and the image in the mind of public in respect of the such
department or office would adverse. The people in the current scenario
having faith in the Print media believes what is published in it is truth,
therefore, while publishing any news in the Newspaper, it is expected that it
should be published with utmost care and caution and sensibly after
scrutinizing its genuineness and truthfulness on the basis of some material.
Therefore, the Print media is nothing but means Mirror evaluating the Data
with Integrity & Assessment. In the present case the complainant has failed
to prove beyond reasonable doubt that the accused No.1 Shobhana Bhartia in
the capacity of Chairperson and Editorial Director and accused No.5 Kumkum
Chhadda in the capacity of Subeditor are responsible for the defamatory
imputations contained in Article Exh.15A published in Hindustan Times
Newspaper on the various forgoing grounds discussed earlier. Therefore, in
my considered opinion accused No.1 Shobhana Bhartia and accused No.5
Kumkum Chhadda are deserves to be acquitted from the charges levelled
against them U/sec. 500, 501 & 502 r/w. 34 of the Indian Penal Code.
Hence, I answer point Nos. [i] to [iv] against them in the negative.
51 C.C.No.3359/SS/10
62. Now, in respect of the accused No.2 Vir Singhvi being Editor,
accused No.3 Arun Roy Chowdhary Resident editor and accused No.4 Sudhi
Ranjan Sen Author & Journalist and accused No.6 Rakesh Sharma Printer &
Publisher respectively have knowledge what is going to be published in
Exh.15A in their respective capacity. The accused No.2 being Editor and the
accused No.3 being Resident editor are responsible for the selecting, verifying
and editing the impugned article. Thus liability of the accused Nos. 2 to 4
and 6 is inescapable. The complainant has succeeded to prove his case
against accused Nos. 2, 3, 4 & 6 beyond all reasonable doubts. I, therefore,
hold the accused Nos. 2, 3, 4 & 6 guilty for the offence punishable Under
sections. 500 & 501 r/w. 34 of the Indian Penal Code. Further, the accused
Nos. 2, 3 & 6 are also hereby hold guilty for the offence punishable Under
Sec. 502 r/w. 34 of the I.P.C. Hence I, answered point Nos. [i] to [iv] in the
affirmative and proceed to hear the accused on the point of quantum of
sentence.
63. The accused No. 2 Vir Sanghvi is absent when called. It is
submitted by the Ld. Counsel Mr. Mahesh Jethmalani that the accused No.2
could not remain present because of his illness and submitted exemption
application on behalf of the accused No.2 which shows that he is not feeling
well and unable to attend to Mumbai, however, the said application came to
be rejected. Thus to avoid undue delay in disposal of the present case and as
another accused are present, it is expedient in the interest of justice to
pronounce the Judgment. The accused No. 3 Arun Roy Chowdhary, accused
No.4 Sudhi Ranjan Sen and accused No.6 Rakesh Sharma are heard on the
point of quantum of punishment to be awarded to them respectively in
person. They have stated that they do not know the complainant personally
52 C.C.No.3359/SS/10
and whatever published was in public good. The Ld. Adv. Mr. Mihir
Gheewalla of the other accused has submitted that this is a peculiar case and
considering the facts and circumstances of it, the sentence of fine would
commensurate and suffice the purpose as it is their first offence. It is next
submitted that accused No.4 Sudhi Ranjan Sen was younger Journalist at the
relevant time. Some sort of sympathetic view may be taken and list possible
sentence may be awarded in the nature of fine only. On the other hand, it is
submitted by the Ld. Adv. Mr. Vijay Hiremath of the Complainant that nature
of offence be looked into as a serious one and the complainant have suffered
nearly about 14 years and this fact is also to be taken into consideration and
adequate sentence may be awarded. In the instant case, it is necessary to take
into account that by publishing such imputation the personal and professional
image of the complainant get tarnished and his reputation considerably and
lowered his esteem in the eyes of his friends, colleagues and peers. It is also
to state here that accused have not did this intentionally though they have
knowledge about the same. By giving careful and anxious consideration and
all pros and cons of the facts and circumstances of the present case, nature of
offence, status of the complainant and the act of the accused are also the
aspects which require to be considered at the time of awarding the sentence
which inclined me to take a lenient view and impose the following sentence
which would meet the ends of justice. Hence, I proceed to pass the following
Order:
O R D E R
1] The accused No.1 Shobhana Bhartia and accused No.5 Kumkum
Chhadda are hereby acquitted of the offence punishable U/Secs. 500, 501 &
502 r/w. 34 of the Indian Penal Code vide section 255 (1) of the Criminal
53 C.C.No.3359/SS/10
Procedure Code, 1973.
2] The accused No.2 Vir Sanghvi, accused No. 3 Arun Roy
Choudhary, accused No. 4 Sudhi Ranjan Sen and accued No.6 Rakesh Sharma
are hereby Convicted of the offence punishable U/Sec. 500 r/w. 34 of the
Indian Penal Code vide section 255 (2) of the Criminal Procedure Code, 1973
and sentenced to suffer Simple Imprisonment for the period of 1 (One)
month each and also to pay a fine of Rs. 3000/ (Rupees Three Thousand
Only) each in default to suffer S.I. for a period of 10 (Ten) days each.
3] The accused No.2 Vir Sanghvi, accused No. 3 Arun Roy
Choudhary, accused No. 4 Sudhi Ranjan Sen and accued No.6 Rakesh Sharma
are hereby further Convicted of the offence punishable U/Sec. 501 r/w. 34
of the Indian Penal Code vide section 255 (2) of the Criminal Procedure
Code, 1973 and sentenced to suffer Simple Imprisonment for the period of 1
(One) month each and also to pay a fine of Rs. 3000/ (Rupees Three
Thousand Only) each in default to suffer S.I. for a period of 10 (Ten) days
each.
4] The accused No.2 Vir Sanghvi, accused No. 3 Arun Roy
Choudhary and accued No. 6 Rakesh Sharma are hereby also Convicted of the
offence punishable U/Sec. 502 r/w. 34 of the Indian Penal Code vide section
255 (2) of the Criminal Procedure Code, 1973 and sentenced to suffer Simple
Imprisonment for the period of 1 (One) month each and also to pay a fine of
Rs. 3000/ (Rupees Three Thousand Only) each in default to suffer S.I. for a
period of 10 (Ten) days each.
5] Substantive sentences awarded to the accused on all the counts
shall run concurrently.
54 C.C.No.3359/SS/10
6] The accused Nos. 2, 3, 4 and 6 shall surrender his P.R. Bond &
Surety Bond to the Court, forthwith for undergoing the sentence.
7] The P.R. Bond & Surety Bond of the accused No. 1 and 5 stands
cancelled.
8] The copy of this Judgment & Order be furnished to the accused,
free of cost.
9] Issue Nonbailable warrant against accused No.2.
10] Judgment and Order is dictated and pronounced in open Court.
Sd/ x x x Mumbai; (S. R. Padwal)Dt: 17/06/2014 Metropolitan Magistrate, 16th Court, Ballard Pier, Mumbai.
RMB/