NAYANABEN BHIKHUBHAI NAYAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner, - original complainant has prayed for an appropriate order to quash and set aside the order dated 9-7-07 passed by the learned Sessions Judge, Navsari passed in Criminal Revision Application No.49/06 in dismissing the same and confirming the order passed by the ld. JMFC, Gandevi passed below Exh-30 in criminal complaint No.859/04 by which the request of the petitioner for issuing process against the accused Nos.7 and 8 has been rejected. It is also further prayed for an appropriate order directing the ld. JMFC, Gandevi to issue process against the accused Nos.7 and 8 in criminal complaint No.859/04 and to try them for the offence punishable u/s 499, 500, 501, 502, 34 and 114 of the IPC.

(2.) The petitioner is the original complainant who has filed one private complaint u/s 190 of the Criminal Procedure Code in the Court of ld. JMFC, Gandevi which was numbered as Criminal Misc. Application No.8/04 and the said complaint was against the eight accused persons for the offence u/s 499, 500, 501, 502, 34 and 114 of the IPC. That as per the said complaint, accused Nos.1 to 6 had organized a press conference on 7-12-03 and that accused No.7 being the reporter of daily newspaper viz. SSandesh had remained present in the aforesaid press conference which was organized by the original accused Nos.1 to 6 allegedly claiming to be the trustees of one Friends New English School. It was the case of the petitioner in the complaint that reckless statements were made by the accused Nos.1 to 6 in the said press conference and the same were printed and published by the accused No.8 in the capacity of the Editor of the abovementioned newspaper. It was alleged in the complaint that neither the accused No.7 tried to inquire into the genuineness of the statements and reckless allegations made by the accused Nos.1 to 6 in the press conference and without inquiring into the genuineness of the same, the accused Nos.8 published the baseless and reckless statements in the newspaper, as a result of which the petitioner was defamed and had to bear a lot of humiliation and embarrassment in the society. That the ld. JMFC, Gandevi initially ordered inquiry u/s 202 of the Criminal Procedure Code and after completion of said inquiry, the ld. JMFC issued process against the accused Nos.1 to 6 only and the ld. JMFC did not issue process against the accused Nos.7 and 8 i.e. reporter and Editor of the aforesaid newspaper SSandesh . That thereafter, the ld. JMFC ordered registration of the case against accusede Nos.1 to 6 which came to be registered as 859/04. That thereafter, the case was put to trial and the petitioner came to be examined at Exh-25. It appears that during the course of the examination-in-chief, the newspaper cutting in which the alleged defamatory article was published was given a tentative Exh-40. The petitioner also during the course of her examination-in-chief was produced on record a letter addressed by accused No.7 dtd 9-1-04 to the learned advocate appearing on behalf of the petitioner relying to the notice issued by the petitioner, wherein also it has been mentioned that the statement issued by the accused Nos.1 to 6 in the press conference was published but it is not borne out as to whether the genuineness or correctness of the statement was verified or not. Therefore, the petitioner submitted an application Exh-70 praying for issuance of process against the accused Nos.7 and 8 also u/s 319 of Criminal Procedure Code, relying upon the aforesaid letter dated 9-1-04 by contending inter alia that the Hon'ble Court had the power to process against persons who appear to be guilt of the offence during the course of inquiry or trial at the time of recording of evidence. That the ld. JMFC, Gandevi by order dated 31-8-06 rejected the application Exh-70. Being aggrieved by the order passed by the ld. JMFC, Gandevi dtd 31-8-06, the petitioner preferred Criminal Revision Application No.49/06 in the Court of learned Sessions Judge, Navsari and the learned Sessions Judge vide its judgment and order dated 9-7-07 dismissed the aforesaid Criminal Revision Application and confirmed the order passed by the ld. JMFC, Gandevi dated 31-8-06. Being aggrieved by the same, the petitioner, - original complainant has preferred the present petition under Articles 226 and 227 of the Constitution of India.

(3.) Shri Bharda, learned advocate appearing on behalf of the petitioner has vehemently submitted that both the courts below have materially erred in refusing to issue process against the accused Nos.7 and 8 i.e. reporter and Editor of the daily newspaper SSandesh . It is submitted that it was the duty of the reporter and editor first to inquire into genuineness of the statements and the allegations made by the accused Nos.1 to 6 made in the press conference before publishing in the newspaper. It is submitted that in the present case without entering into the genuineness of the same, the accused No.8, editor on the basis of the report submitted by the reporter accused No.7 who has attended the press conference published baseless and reckless statements in the newspaper and as a result of which the petitioner is defamed and had to bear a lot of humiliation and embarrassment in the society and considering the same, both the Courts below ought to have issued process against the accused Nos.7 and 8 also for the offence u/s 499, 500, 501, 502, 34 and 114 of the IPC. It is submitted that during the course of the examination-in-chief of the petitioner and on the basis of the letter addressed by the accused No.7 dated 9-1-04 to the learned advocate appearing on behalf of the petitioner relying to the notice issued by the petitioner, a case has been made out against the accused Nos.7 and 8 and under the circumstances, the ld. JMFC ought to have exercised powers u/s 319 of Criminal Procedure Code and ought to have issued process against the accused Nos.7 and 8 also. It is further submitted by him that without ascertaining the veracity of the statements made by the accused Nos.1 to 6 in the press conference, the accused Nos.7 and 8 colluded with the accused Nos.1 to 6 and went ahead to print and publish and thereby complete the alleged offence of defamation. It is submitted that the Courts below have materially erred in holding that no new material and/or new evidence has been adduced by the petitioner during the course of examination-in-chief, so as to issue process against accused Nos.7 and 8. Under the circumstances, it is requested to allow the present petition by quashing and setting aside the orders passed by both the Courts below and to issue process against accused Nos.7 and 8 also.