A K JAIN Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This application has been filed under Sections 561-A and 439 of the Code of Criminal Procedure, 1898, which Code is still in force in the State of Sikki, for quashing the order dated 7-3-1991 summoning the applicants to face a criminal case under Sections 500, 501, 502, 109 and 34, I.P.C., passed by the learned Judicial Magistrate (East and North) Sikkim in Criminal Mise. Case No. 10 of 1991.

(2.) MessersBennett Coleman and Company Ltd., is carrying on the business of printing and publishing various newspapers, magazines, periodicals and weeklies from various parts of the country and one of the dailies pubished by this Company is Nay Bharat Times. Petitioner No. 1 Shri A.K. Jain is the Chairman and petitioner No. 2, Shri Samir Jain is the Managing Director of the Company. The Criminal proceedings arise from a news item published by the Nay Bharat Times on 11-12-1990 with the heading, "Dalmia Samooh Ki Kar Chori pakari gayi." Thereafter notice dated 22-1-1991 was sent, by Shri R. B. Subba, advocate on behalf of five companies including Messers Mansarover Commercial Pvt. Ltd., respondents No. 2, the complainant, to seven persons including the applicants, alleging, inter alia, that the said publication had been made mala fide with the motive of verifying the name and reputation of the companies on whose behalf of the notice was sent, undermining their business. By this notice, the addresses were required to tender unconditional apology as per the draft enclosed therewith and to publish the same on the front page of the newspaper with the same prominence with which the news item had been published. It was further mentioned in the notice that in within 48 hours after the service of the notice, civil and criminal proceedings would be initiated against the addressees. The petitioners sent a reply (Ex. P. 7A) to this notice on 11-2-91 through Shri P.R. Seetharaman, Advocate mentioning therein that his clients were Chairman and Vice Chairman and Managing Director respectively of the company known as M/s. Bannet Coleman and Company Ltd., who are the publishers of the Nav Bharat Times from various places and the Board of Directors had entrusted the editorial responsibility of Shri Rajendra Mathur, Chief Editor and the said paper is printed and published by Shri Ramesh Chandra, Executive Director. It was further mentioned that his clients did not take any part in gathering news and/or in editorial matters and printing and publishing of the newspaper and as such they had no direct knowledge of what was printed and published, as they were concerned with the general policy of the newspaper and business aspect of the same and so the notice was uncalled for and unjustified. Thereafter, a criminal complaint which was registered as Criminal Mise. Case No. 10 of 1991 in the Court of the Judicial Magistrate East and North Sikkim, was filed by respondent No. 2 Messers Mansarover Commercial Pvt. Ltd., against six persons. Accused Nos. 1 and 2 are the applicants who are the Chairman and the Managing Director respectively. Shri Rajendra Mathur who was the Chief Editor, since deceased, was impleaded as the third accused. Accused No. 4 is Shri Ramesh Chandra the printer and publisher. Accused No. 5 is Shri Surender Pratap Singh, Executive Editor and accused No. 6, is Shri Sanjay Pugalia, the author of the impugned item. It was alleged in the complaint that the above mentioned item was defatory against the complainant company and had directly or indirectly harmed and injured its reputation and credibility. In paragraph 8 of the complaint, it was alleged that the complainant had reason to believe that the said news item had been written and published at the instance of and in furtherance of the common intention ,of all the accused persons who were out to harm the complainant company. by publishing the above item. In paragraph 17, the complainant alleged that all the accused persons had in active connivance with each other and "with common malign" defamed the complainant company by publishing the item with the intention to harm knowing or having reason to believe that the said statement would harm the reputation and credibility of the company. The accused were alleged to have committed offences under Sections 500, 501, 502 read with Sections 34 and 109 of the Indian Penal Code. The learned Magistrate examined two witnesses, namely, Shri Rakesh Maggo PW 1 and Shri Jigmi Dorjee PW 2. The evidence of Shri Jigmi Dorjee is not at all material for the present case, since he has stated nothing about the involvement of the applicants with the news item in question. The other witness, Shri Rakesh Maggo, is the director of the complainant company, Messers Mansarover Commercial Pvt. Ltd. He has also stated nothing as to the involvement of the applicants with respect to its preparation, publication or printing except that the Nav Bharat Times is managed and owned by the accused persons as Chairman and Managing Director. On 7-3-91 the learned Magistrate passed the impugned order summoning all the accused, expressing the view that the complainant has made out a prima facie case under Sections 500, 501, 502, 109 and 34, I. P. C. But he has not indicated on what specific materials he found a prima facie case against the applicants, as he has stated that his view is based on a consideration of the submissions of the learned counsel for the complainant and on a perusal of the exhibits (documents) before him. This statement is too vague to give an insight into the mental process which could have led him to hold that view. This much is, however, clear that he did not find any thing in the oral evidence to be of relevance against the applicants. Certainly, the submissions of a counsel cannot take the palce of oral evidence or other materials on which a person can be called upon to answer a criminal case. The documents, he had in contemplation, he has not specifically mentioned to show which documents, in his view, made the applicants responsible for the publication and in which manner. He saw virtue in being vague, rather than specific, exposing, himself to the allegation from the applicants that the impunged order suffers from non-application of mind. The case of the applicants is that no allegation whatsoever has been made and no material whatsoever has been disclosed to show their involvement in the making or publication of the news item and the complaint has been filed with an ulterior motive to harass them.

(3.) Making or publication of an imputation is an essential ingredient of the offence of defamation. Arguments in this Court have been advanced on the footing, as if the news item in question is defamatory, since, the question as to whether or not it is, in fact, defamatory is to be determined at the trial. The only question for consideration at this stage is whether there is any material on the record to make out a prima facie case about the involvement of the applicants either in the making or the publication of the item. As observed in Nagawwa v. Veeranna, AIR 1976 SC 1947: (1976 CriLJ 1533), the scope of the inquiry under, Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint on the materials placed by, the complainant before the Court for the limited purpose of finding out whether prima facie case for issue of process has been made out. In coming to a decision as to whether a process should be issued, the Magistrate can take into consideration inherent improbabilities, appearing on the face of the complainant or in the evidence led by the complaint in support of allegations. By way of illustrations, to provide sufficient guidelines, it was pointed out that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: