BALARAM ROUT Vs. BHARTUHARI MAHATAB

JUDGEMENT

(1.) THE present petitioner was the complainant before the Sub -Divisional Judicial Magistrate,Cuttack in ICC Case No. 65 of 1991 who filed his complaint petition on 19 -6 -1991. He has retired from service on 31 -7 -1991 while being a senior officer in the Indian Administrative Service was working as the Settlement Officer, Cuttack -Puri Major Settlement. He preferred the aforesaid complaint case after having found that some defamatory allegations of misappropriation had been published in the local newspaper 'Prajatantra'wherein it was also alleged that he had received illegal gratifications and had shown undue favours. The learned Sub - Divisional Judicial Magistrate, however, refused to take cognizance against the present opp. parties who are the Editor, Printer and Publisher of Prajatantra, a daily newspaper having its place of publi - cation at Cuttack. The petitioner -complainant examined himself before the Magistrate and gave his initial statement which was recorded but the Magistrate directed an enquiry to be made Under Section 202 of the Code of Criminal Procedure before the processes were to be issued to the present opp. parties. the petitioner not only examined himself but also examined two other witnesses in support of his contention. According to the present petitioner, just the day before the petitioner retired from service, a vigilance raid was done on his house on the basis of the news item published in 'Prajatantra'. Before the Magistrate dismissed the complaint petition, oh his own, had sought for certain information from the State Vigilance Department regarding the truth or otherwise of the allegations made in the publication against the petitioner to which the Court had received a report from the A.I.O. Vigilance on 7 -12 -1991 intimating that a vigilance case had been initiated against the petitioner since 1 -8 -1991. Four days after receipt of the report, the Magistrate again sought for similar information to which the Deputy Secretary, Board of Revenue reported that on the complaint of one Sri D. H. Das against the present petitioner, an enquiry was pending with the Director of Orissa Land Records and Survey. This report dated 21 -12 -1991 of the Deputy Secretary as well as the report of the -A.I.O. Vigilance dated 7 -12 -1991 were acted upon by the learned Sub -Divisional Judicial Magistrate, who dismissed the complaint application as it appeared to the Court that the allegations published in the newspaper against the complainant were bad on true facts and that the Editor, Printer and Publisher acted in good faith and the news item was not published without any malice and there was no conspiracy between the accused persons in making such publication.

(2.) THE contention made by the learned counsel for the petitioner is that the enquiry Under Section 202 of the Code of Criminal Procedure does not contemplate calling for further materials suo motu by the Magistrate which may support the accused without being called for by the complainant. The Court cannot act as a prosecutor or the complainant and shall come to a finding on the materials brought by the complainant before the Court if a prima facie case was made out, in which event he may be called upon in law to issue the processes against the accused persons. The contention of Mr, Das, learned counsel for the opp. party 1 is that in view of Exception 9 to the Section 499 of the Indian Penal Code it is not defamation to make an imputation on the character of another provided that the imputation was made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. The contention of Mr, Das is that since the press has a bounden duty to bring the matters, which concern public good, to the knowledge of the public by publication, and in so doing unless made without good faith, would not constitute any offence. The learned Magistrate had called for those reports from the Board of Revenue as well as from the Vigilance Department only to satisfy itself if the publication was made in good faith and the reports were rightly relied on in refusing to take orgnizance. The question raised now is whether the Court is justified in acting on these two documents which the Court called for by its own order and not at the instance of the complainant. In the case Smt. Nagawwa v. Veeranna Shivalingappa Konjailgi and Ors. reported in AIR 1976 Supreme Court 1947, the Court held thus :