Masoodul Huq And Others v. Umakanta Misra .

1. Petitioner No. 1 is a journalist and an editorial staff of the magazine ‘Sunday’. Petitioner No. 2 is the Editor; petitioner No. 3 is a Manager and petitioner No. 4 is the publisher of the said magazine ‘Sunday’. In this revision petition, all of them have prayed to quash the order of the learned Magistrate taking cognizance of an offence under section 500, Indian Penal Code.

2. The offending article was published in the magazine ‘Sunday’ dated September, 12-18, 1982 under the caption “How ‘honourable’ is the Orissa Speaker?” at page 25 of the said issue. The complainant is the son-in-law of the then Speaker and in the complaint petition (annexed as Annexure-2 to the revision petition), portions of the article which are defematory so far as the complainant is concerned have been enumerated in paragraphs IV and V of the said complaint petition. Mr. Mohanty for the petitioners contends that the portions extracted in the complaint petition do not make out the offence of defamation particularly when same amount of fair comment on a matter of public interest in respect of a person who holds a public office is permissible in law. According to Mr. Mohanty, in the article in question nothing has been stated against the complainant who happens to be the son-in-law of the then Speaker, so as to constitute prima facie an offence under section 500, Indian Penal Code, and, therefore, the cognizance taken by the Magistrate should be quashed and continuance of the proceeding must be held to be an abuse of the process of law.

3. Mr. Rath, the learned counsel for the complainant-opposite party, however, contends that the insinuations made against the complainant were grossly defamatory and are the outcome of a deliberate attempt to destroy the position and status of the complainant in the public estimation and at this stage it is not permissible to delve into an enquiry as to whether the said insinuations would come within the ambit of ‘fair comment’, as contended by the learned counsel for the petitioners. Whether the impugned publication is defamatory or not is a matter to be adjudicated upon after a full-fledged trial and it is not permissible for this court at this stage to quash the cognizance since prima facie the article is defamatory in nature. The rival contentions require careful consideration.

4. The law on the subject has been elaborately discussed in a recent decision of this Court in the case of Dr. Radhanath Rath v. Balakrishna Swain, (1985) 59 Cut LT 226 : (1985 Cri LJ 735). In paragraph 6 of the said decision, the learned Judge has held: —

“The inherent jurisdiction of the High Court under section 482 of the Code to quash a criminal proceeding is to be exercised in a proper case to prevent an abuse of the process of the court or to secure the ends of justice. The criminal proceeding instituted against an accused person shall ordinarily be proceeded with in accordance with law. Where, however, the allegations made in the first information report or in the complaint, even on their face value and if accepted in their entirety, do not constitute an offence or the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, the High Court may exercise its power under section 482 of the Code. As the Magistrate at the stage of taking cognizance is restricted to finding out whether there is a prima facie case or not for proceeding against the accused person, the High Court is not to enter into a detailed discussion regarding the factual aspects and should not launch on a meticulous examination of the case on merits and set aside the order of the Magistrate taking cognizance and directing issue of process against some accused persons. Whether there are sufficient materials to hold a person guilty of the offence is to be decided at the stage of trial and not while finding out as to whether there are materials to take cognizance and proceed against the accused……… Some of the categories of cases where the inherent jurisdiction of the High Court to quash a criminal proceeding can and should be exercised: (1) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged, (ii) where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do no constitute the offence alleged and the accused persons do constitute an offence alleged, but there is either no legal evidence adduced clearly or manifestly fails to prove the charge. The inherent power is to be exercised by the High Court under section 482 of the Code when no other remedy is available and sparingly.”

5. The learned Judge then referred to the decision of the Supreme Court in the case of State of West Bengal v. Swapan Kumar Guha, (1982) 1 SCC 561 : AIR 1982 SC 949 : (1982 Cri LJ 819), and held:—

“when after application of mind on the basis of a petition of complaint made and the statement of the complainant recorded by the Magistrate, cognizance has been taken and such an order is sought to be quashed it would not be legal and reasonable for the High Court at this stage to launch on a detailed and meticulous examination of the case on merits and find out as to whether there is sufficient material to hold the accused persons guilty of the accusations levelled against them as this is a matter which is to be decided at the trial and not at the stage of taking cognizance.”

6. In the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1 : AIR 1983 SC 67 : (1983 Cri LJ 159), the Supreme Court undoubtedly held:—

“It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying: the same, no offence is constituted. In other words the test is that taking the allegations and the complaint as they are, without adding or substracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code.”

7. It would be useful to refer to some observations of Vivian Bose, J., in the case of Dr. N.B Khare v. M.R Masani, AIR 1942 Nag 117 : (1942-43 Cri LJ 856). The learned Judge observed that the press and authors and publishers of books have no special privilege. They are in no better position than any other man. If they make assertions of facts as opposed to comments on them and those assertions are defamatory, they must either justify those assertions, or, in the limited cases specified in Exception 9 to section 499 of the Indian Penal Code, show that the attack on the character of another was for the public good and that it was made in good faith. In the recent case of Sewakram Sobhani v. R.K Karanjia, Chief Editor, Weekly Blitz, (1981) 3 SCC 208 : AIR 1981 SC 1514 : (1981 Cri LJ 894), Mr. Justice Sen speaking for the majority held:—

“The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege, and have greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of citizen. We hasten to add that journalists are in no better position than any other person. Even the truth of an allegation does not permit justification under First Exception unless it is proved to be in the public good. The question, whether or not it was for public good is a question of fact like any other relevant; facts in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or in the limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in good faith.”

8. Keeping the aforesaid legal position in mind, if the allegation in the complaint petition are examined, it cannot be said at this stage that the allegation if accepted in their entirety, would not make out A case of defamation. Prima facie, the allegations are defamatory and it would be at the trial decided whether any of the exceptions to section 499 of the Indian Penal Code is attracted in the facts and circumstances of the case. Mr. Mohanty the learned counsel for the petitioners, relied on a passage from the book ‘Libel and Slander’ by Gatley, 7th Edition, where at page 734, the learned author quoted an observation of Bain, J. in Manitoba Press Co. v. Martin, ((1892) 8 Manitoba R. at page 70, to the effect:—

“One who undertakes to fill a public office offers himself to public attack and criticism, and it is now admitted and recognised that the public interest requires that a man's public conduct shall be open to the most searching criticism.”

9. The author also quoted the observation made in the case of Sevmour v. Butterworth, (1862) 3 F & F, 372, to the effect:—

“The private character and conduct of a person who fills a public office or takes part in public affairs may also be the subject for fair comment in so far as it has reference to or tends to throw light on his fitness to occupy the office or perform the duties thereof, but not otherwise.”

10. Whether the printers and publishers of the article in question could be protected by the aforesaid views of the learned author or not is a matter which can be decided only after trial. At any rate, the complainant in this case was not holding any public office, nor took part in any public affairs.

11. It is, however, not necessary for me to discuss any further in this regard since in my opinion, the impugned article contains disparaging remarks against the complainant which prima facie attract the provision of section 500 of the Indian Penal Code and the High Court in exercise of its inherent jurisdiction would not be entitled to quash the cognizance in accordance with the dictum of the Supreme Court in the case reported in (1983) 1 SCC 26 : AIR 1983 SC 57 : (1983 Cri LJ 159), or in accordance with the dictum of the Supreme Court in Swapan Kumar Guha's case, (1982) 1 SCC 561 : AIR 1982 SC 949 : (1982 Cri LJ 819). I am, therefore, of the opinion that at this stage, it is not possible for me to hold that there was no prima facie material for taking cognizance in respect of the offence, and consequently, the Magistrate was fully justified in, taking cognisance against the petitioner.

12. In the result, therefore, the present criminal revision is devoid of merits and the same stands dismissed. The learned Magistrate is directed to proceed with the trial of the case in accordance with law.

13. Revision dismissed.