DHIRENDRA NATH SEN Vs. RAJAT KANTI BHADRA

JUDGEMENT

(1.) This Rule is for quashing the proceedings under Section 500 of the Indian Penal Code, pending before Sri K.K. Roy, Magistrate, 1st Class, Cooch Behar, in Case No. C.R. 28 of 1966 under Section 500 I.P.C. as not maintainable in law and on merits.

(2.) The facts leading on to the Rule are chequered but can be put in a short compass. The complainant, Rajat Kanti Bhadra, who described himself as a member of the Shoulmari Ashram, filed a complaint under Section 500 I.P.C, in the Court of the learned Sub-Divisional Magistrate, Cooch Behar against two accused persons viz., Sookomal Kanti Ghosh, Editor of a Bengali Daily called the "Jugantar" and Dhirendranath Sen, the printer and publisher of the same. The impugned publication is an item of news purported to have been served by the P.T.I, and U.N.I, and appeared in the issue of the Jugantar dated the 7th December, 1965, under the sub-heading "Shoulmari Sadhu", the English translation whereof is as follows: "The Foreign Minister stated that the Sadhu of Shoulmari who calls himself Subhas Chandra Bose, is not Netaji and the Government has not the least doubt about this fact that he is not". It was averred that the said newspaper which was published in Calcutta, was widely distributed in West Bengal, including Cooch Behar, within the jurisdiction of the abovementioned court. The learned Magistrate examined the complainant on solemn affirmation and sent the case for judicial enquiry and report to Sri I. Sundas, Magistrate, 1st Class, Cooch Behar. The latter after examining the complainant and four other witnesses observed on 16-3-1966 that no cognizance can be taken of the offence under Section 500 I.P.C. as there was a non-conformance to the provisions of Section 198 of the Code of Criminal Procedure, inasmuch as the complainant is not the person aggrieved within the meaning of that section, and dismissed the complaint under Section 203 of the Code of Criminal Procedure, sending back the record to Sri S. K. Banerjee, Magistrate, 1st Class, Cooch Behar. On a perusal of the said report, Sri S.K. Banerjee, Magistrate, 1st Class, Cooch Behar by his order dated the 18th March, 1966, dismissed the complaint under Section 203 of the Code of Criminal Procedure. The complainant thereupon preferred a revisional application under Section 436 of the Code of Criminal Procedure before the learned Sessions Judge, Cooch Behar for setting aside the order of the trying Magistrate dismissing the complaint and for holding a further enquiry into the complaint filed. Sri H.N. Sen, Sessions Judge, Cooch Behar, by his order dated the 30th September. 1968, allowed the said application and directed a further enquiry into the complaint referred to above. The learned trying Magistrate, on receiving back the records sent the case to Sri G. C. Chatterjee, Magistrate, 2nd Class, Cooch Behar, for judicial enquiry and report by his order dated the 6th January, 1967. Four witnesses were examined by the learned enquiring Magistrate who ultimately submitted a report on 26-6-1967 holding that there was a prima facie case against the accused persons under Section 500 I.P.C. On the 12th July, 1967, Sri N. N. Pal, Magistrate. 1st Class, Cooch Behar, perused the report of the judicial enquiry and summoned both the accused under Section 500 I.P.C. This order as also the proceedings based thereupon have been impugned by the two accused-petitioners and the present Rule was obtained.

(3.) Mr. Ajit Kumar Dutt, Advocate (with Messrs. Prasun Chandra Ghosh and Birendranath Banerjee, Advocates) appearing on behalf of the accused-petitioners in support of the Rule, has made 3 three-fold submission. The first contention of Mr. Dutt which is one of law and goes to the very root of the case, inter alia is that the cognizance of the case as taken by the learned Magistrate has been bad in law and without jurisdiction vitiating the resultant proceedings because of a non-conformance to the mandatory provisions of Section 198 of the Code of Criminal Procedure inasmuch as the present complainant is not "some persons aggrieved" within the meaning of Section 198 of the Code. In support of his contention, Mr. Dutt referred to the averments made in the petition of complaint which relate to the Sadhu of Shoulmari only and also to several authorities as well as some reported decisions on the point. The second contention of Mr. Dutt raises an interesting point of law viz., that even if it be assumed that the petition of complaint discloses a defamation of the Ashram, thereby touching the complainant as a member thereof, no action would lie under Section 500 I.P.C., as the Ashram is an indeterminate body. To establish his point on this behalf. Mr. Dutt referred to the allegations made in the petition of complaint and to the contents of the impugned publication itself. The third and the last contention of Mr. Dutt is however one of fact and relates to merits viz., that the impugned publication is not in any way defamatory and in any event the proceedings are not maintainable in the absence of the two news agencies which served the news item. When the case was called on for hearing, nobody appeared on behalf of the complainant-opposite party and after the matter was heard in part, it was adjourned in the interests of justice to give an opportunity to the complainant-opposite party to appear through some other learned Advocate, as it appeared from the records that the learned Advocate, who had originally been engaged and filed the power, was elevated to the Bench. Ultimately an administrative notice had to be issued and Mr. Arun Kumar Jana, Advocate, appearing on behalf of the complainant-opposite party made his submissions. Mr. Jana submitted in the first instance that the objections raised on behalf of the accused-petitioners as to whether there has been a proper cognizance under Section 198 of the Code of Criminal Procedure or whether the present complaint merely discloses the defamation of an indeterminate body or whether the impugned publication is not at all defamatory and not maintainable in the absence of the two news agencies, are ultimately questions of fact to be determined in a full-fledged trial and therefore the prayer for quashing at this stage is premature. With regard to the first submission of Mr. Dutt. Mr. Jana contended that there has been no non-conformance to Section 198 of the Code of Criminal Procedure because the defamation alleged relates to the head of the institution. His Holiness Srimat Saradanandiee, touching thereby all the members of the Ashram who are his disciples. In this context, he submitted that the impugned publication having lowered the Head of the Ashram in public estimation, has also so lowered the complainant, who is but a member of the said Ashram, and is as such a "person aggrieved" within the meaning of Section 198 of the Code of Criminal Procedure. Mr. Jana next submitted that the second contention of Mr. Dutt is also not maintainable inasmuch as the defamation alleged relates not to an indeterminate body but to an Ashram, the religious head whereof viz.. His Holiness Srimat Saradanandiee, was defamed, touching thereby the present complainant also as his disciple. As to the third and last contention of Mr. Dutt, Mr. Jana joined issue and submitted that the point whether the impugned publication is defamatory or not, is based ultimately on fact and is but premature at this stage, without a full-fledged trial.