TATHAGATA SATPATHY Vs. PRIYABRATA PATNAIK

JUDGEMENT

(1.) The petitioner are the accused persons in I.C.C. Case No. 2710 of 2008 pending before the learned S.D.J.M., Bhubaneswar. The complaint petition was filed by the opp. party No. 1 herein, against the petitioners and other accused persons making allegation of commission of offence under Sections 499/500/501/502/34 IPC. The petitioner No. 1 is the Editor of the daily Oriya newspaper, "The Dharitri" and the petitioner No. 2 is its Printer and Publisher. On the complaint petition being filed, the learned S.D.J.M. recorded the initial statement of the complainant and by order dated 26.6.2008, considering the initial deposition of the complainant and the documents available on record found that prima facie evidence of commission of offence under Sections 500/501/502/34 IPC is revealed. Hence, he took cognizance of the said offence and directed issuance of process against the accused persons including the two petitioners fixing 21.7.2008 for appearance. The petitioners -accused persons as well as the accused "The Samajbadi Society" appeared through its council in response to summons issued and upon a memo being filed by the complainant, the name of accused No. 4 was deleted from the record. Petitions were filed by the petitioners under Section 205 Cr.P.C. praying to dispense with their personal appearance which were heard and disposed of by the learned Court below on 2.8.2008 allowing the said prayer. The petitioner No. 1 was also permitted by the learned S.D.J.M. to represent accused No. 3 - M/s. The Samajbadi Society, in the case. On 30.10.2008, the complainant produced one witness, namely, Jatindra Narayan Chhotray, when the accused persons prayed for time, which was allowed till 1.11.2008. On 1.11.2008, the said witness was examined in chief. The accused persons prayed for an adjournment which was rejected and it was recorded that the cross-examination of P.W.1 is declined. On 6.12.2008, another two witnesses, namely, Debesh Das and Pratap Kumar Das were produced by the complainant, but as the Court was busy in chamber duty, the case was adjourned to 15.12.2008. On 15.12.2008, new advocates appeared for the accused and even though one witness was present, the case was adjourned to 15.1.2009. Again 15.1.2009, the witness Debesh Das was examined as P.W.2 in part and due to his sudden illness, his examination, was deferred. The case was adjourned to 7.2.2009. On 24.1.2009, a petition under Section 311 Cr.P.C. was filed on behalf of the accused persons for recalling P.W.1 for cross-examination and another petition was filed for recalling the order of cognizance. The learned Court below after hearing both the petitions allowed the petition for recalling P.W.1 for cross-examination and rejected the petition for recalling the order taking cognizance of offences on the ground that the said petition is not maintainable. On 7.2.2009 the accused persons cross-examined P.W.1 who was thereafter discharged. This Criminal Misc. Case has been filed under Section 482 Cr.P.C. on 30.1.2009 with a prayer to quash the order taking cognizance of the offences, dated 26.6.2008.

(2.) It was contended by Mr. Mishra, learned Counsel for the petitioner that there is absolutely no case made out under Sections 500/501/502 of the I.P.C. inasmuch as it was open for the complainant to take recourse to Section 14 of the Press Council Act, 1978 which envisages that if a complaint is raised by the Press Council of India and the Council has reasons to believe that a newspaper or news agency has offended against the standards of Journalistic ethics or public test or that an Editor or a working Journalist has committed any professional misconduct, the Council may after giving the newspaper, or news agency, the Editor or Journalist concerned an opportunity of being heard, hold an enquiry in such manner as may be provided by regulations made under the said Act and if it is satisfied that it is necessary so to do, it may for reasons to be recorded in writing, warn, admonish or censure, the newspaper, the news agency, the Editor, or the Journalist or disapprove, the conduct of the Editor or the Journalist as the case may be. It is, thus, submitted by the learned Counsel that it would have been just and proper for the complainant, if at all he had any allegation, as stated in the complaint petition to have approached the Press Council of India under the Press Council Act, 1978 and the learned Court below had absolutely no power to entertain the complaint petition and take cognizance of the offences which are not sustainable in law. It is further contended by Mr. Mishra that while taking cognizance the learned Court below should have considered that the complainant has not specifically stated that the petitioners were in-charge of selecting the news items which are to be published in the newspaper and, more specifically, no where in the complaint petition, the complainant has stated that at the relevant time, the petitioners were occupying the position of news Editors and are in any way responsible for publication of the news in question which is alleged to have affected the reputation of the complainant. Hence, the learned Court below should have desisted from taking cognizance of the offences as has been done and, thus, the order of taking cognizance being illegal, is liable to be quashed. Mr. Mishra further contended that the complaint has not whispered any word in the complaint petition that the petitioners were in inimical terms with him in any manner and the news items were nothing but vindictive action on the part of the petitioners and, thus, in the absence of such material, the learned Court below should not have taken cognizance of the offences. As a matter of defence, it had been contended that the petitioners are responsible persons holding a widely circulated Oriya daily and their duty is to bring the facts to the readers of the State and other parts of the country. Thus, while exercising their responsible jobs, the news items, which related to a sensational murder of a Judo Coach of the State, namely Biranchi Das, were published in good faith and not with a deliberate intention to malice the reputation of any body. The petitioner No. 1 is stated to be a popular politician of the State and at present, the Member of Parliament from Dhenkanal Parliamentary Constituency. It is, therefore, stated that he seldom has time to select the news item to be published in his newspaper and, as a matter of fact, being the Editor, his duty is to control the administrative affairs of the newspaper concerned but not to select the news items which is the duty of the news Editors. The news item, according to the learned Counsel for the petitioner, relates to facts existing and, therefore, cannot be termed to be malicious or published with the intention to defame the complainant. Mr. Mishra, in support of his contentions relied upon the decisions in the cases of Mammen Mathew v. M.N. Radhakrishnan and Anr., 2008 CRLJ 845, V.S. Achuthanandan v. G. Kamalamma and Anr., 2008 CRLJ 4221, K.M. Mathew v. State of Kerala and Anr., 1992 5 OCR 66, Vijay Jawaharlalji Darda and Ors. v. Laxmikanth C. Gupta and Anr., 2005 CRLJ 1886, Kalyanam v. Ramesh, 2003 2 Crimes 157, H.K. Dua v. Chander Mohan, Deputy Chief Minister of Haryana, 2008 CRLJ 2301, Vivek Goenka v. State of Maharashtra and Anr., 2003 CRLJ 4058 and Prabhu Chawla and Ors. v. A.U. Sheriff, 1995 CRLJ 1922.

(3.) In the case of Mammen Mathew (supra), the Kerala High Court referring to the news items which were alleged to be defamatory by the complainant and relying upon the decision in the case of Sunilakhya Chowdhury v. H.M. Jadwet and Anr., 1968 AIR(Cal) 266 came to the conclusion that mere publication of an imputation by itself may not constitute the offence of defamation unless such imputation has been made with the intention, knowledge or belief that such imputation will harm the reputation of the person concerned and considering the publication involved in the said case, the said High Court held that by no stretch of imagination could it be said that Annexure-B news item was published with the intention of harming the reputation of the complainant. If it were so, then as soon as the complainant voiced his protest, the first accused would not have published Annexure-C news item faithfully conveying to the public what the complainant had represented to the Malayala Manorama daily. The High Court also raised its doubt as to whether a complaint of defamation would lie against the first accused Editor. In the said case, at the top of the relevant page of the daily newspaper, the names of associate Editor, Managing Editor, Editor, Chief Editor etc. were mentioned and after the names of the last two functionaries, it was printed "responsible for selection of news item under the P.R.B. Act". Considering the facts involved in the said case, the Kerala High Court held that the complaint does not make out the alleged offence and it cannot be allowed to stand and, accordingly, quashed the same. 4. In the case of V.S. Achuthanandan (supra), the Kerala High Court was in seisin of an application filed by different accused persons in a criminal case for quashing the proceeding. The facts of the said case related to a news item publishing the visit of the Member, Human Rights Commission (Kerala State) to a Government hospital. Referring to the news item and quoting allegations made in the complaint petition, the Court came to the conclusion that there is absolutely no positive allegation that the first accused is responsible for the selection of the news article and printing and publishing the same and for the above sole reason, it can be seen that the averments contained in Annexure-B complaint are not sufficient to constitute an essence of ingredients of Section 499 IPC. The case of Mammen Mathew (supra) was also relied upon. The Court ultimately came to the conclusion that on a reading of the complaint, no offence under Section 499 is disclosed against the petitioners therein who are the accused persons. In the case of K.M. Mathew (supra), the Supreme Court has held as follows: