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Dr. Radhanath Rath and ors. Vs. Balakrishna Swain - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1985CriLJ735
AppellantDr. Radhanath Rath and ors.
RespondentBalakrishna Swain
Cases Referred(Delhi) S. Nihal Singh v. Arjan Das.
Excerpt:
.....be for protection of the interest of the person making it or of any other person or for the public good. good faith is a question of fact. public good is also a question of fact. the person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. the proof of the truth of the statement is not an element of the ninth exception as of the first exception to section 499. in the ninth exception, the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. 15. the stage for deciding whether the petitioners acted..........be for protection of the interest of the person making it or of any other person or for the public good. good faith is a question of fact. so is the protection of the interest of the person making it. public good is also a question of fact. simple belief or actual belief by itself is not enough. it must be shown that the belief in the impugned statement had a rational basis and was not just a blind simple belief. that is where the element of due care and attention plays an important role. the person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. the proof of the truth of the statement is not an.....
Judgment:
ORDER

B.K. Behera, J.

1. The petitioners invoke the inherent jurisdiction of this Court Under Section 482 of the Code of Criminal Procedure (for short, 'the Code') to quash the order passed by the learned Sub Divisional Judicial Magistrate, Khurda, taking cognisance of the offences punishable Under Sections 500 and 301 of the Indian Penal Code on a petition of complaint made by the opposite party, a Junior Engineer, Roads and Buildings, Khurda Division, in the district of Purj. An interim order of stay of further proceeding was passed by this Court on October 19, 1984 and notice was issued to the opposite party on the questions of admission and stay.

2. Having heard Mr. P. Palit for the petitioners and Mr. B.M. Patnaik for the opposite party and having perused the record of the Court of the learned Sub Divisional Judicial Magistrate, I do not find any prima facie case for interference at this stage by this Court under its inherent jurisdiction and in my view, there is no case for admission. As the learned Counsel for both the sides have referred to the facts of the case and some principles of law, I feel myself called upon to briefly give the reasons for my conclusion.

3. The petitioner No. 1 is the editor and the petitioner No. 3 is the publisher of 'Samaja', an Oriya daily newspaper. The petitioner No. 4 is the editor and the petitioner No. 5 is the publisher of 'Sunday'. The petitioner No. 2 is a journalist residing at Cuttack. The opposite party has alleged in his petition of complaint and has stated Under Section 200 of the Code that he has been defamed by the petitioners by publication of news and articles in 'Samaja' and 'Sunday'. In the weekly magazine 'Sunday' (11-17 March 1984), published from Calcutta and having wide circulation throughout India, it has been stated that at the instance of the complainant opposite party, Mr. G.C. Sahu, a Government contractor, supplied and carried materials to village Rameswar for construction of the house of Mr. J.B. Patnaik, the Chief Minister of Orissa and a letter purported to have been written by Mr. Sahu to the opposite party with purported xerox copies of fifteen alleged receipts had been published. It has also been alleged by the complainant-opposite party that on March 22,1984, a news item was published at page 4 of 'Samaja' and a letter purported to have been written by Mr. G.C. Sahu addressed to the opposite party was published wherein it had been stated that at the instance of the complainant-opposite party, Mr. Sahu had supplied building materials worth Rs. 28,023.50 and that he had made payments for labour at the instance of the complainant-opposite party and that the latter had assured . payment of the amount within 4 to 6 months. Imputation had been made that the complainant-opposite party had placed orders in exercise of his official capacity as an engineer for the purpose of obtaining illegal benefits. Below this purported letter had been written in bold letters that at the instance and under the direction of the complainant-opposite party, the house of the Chief Minister was being constructed and that the contractor Mr. Sahu had not been paid the amount of Rs. 28,OOO/- and odd by the opposite party. According to the complainant-opposite party, he had nothing to do with the construction of the house and the Chief Minister and his wife Mrs. Jayanti Patnaik did not even know him. The statements made in 'Sunday' 'Samaja' were false and had been directed to defame him, as alleged by the complainant-opposite party. The petitioner Mr. S.P. Nanda had along with Dr. Radhanath Rath and a couple of other persons met Mr. Sahu and had requested him to execute a number of black papers necessary for the purpose of making representations/memorials for getting the complainant-opposite party transferred from the Khurda sub-division and on being so induced, Mr. Sahu had executed a number of black papers and delivered those papers on being fraudulently and dishonestly induced by the persons who had approached Mr. Sahu. The petitioners, pursuant to their criminal conspiracy, made and fabricated these documents or parts thereof containing false statements of payments by Mr. Sahu intending that such false statements might be used as evidence in a judicial proceeding. Knowing 1985 Cri. LJ and having reason to believe that the receipts were forged, the petitioners had fraudulently and dishonestly used the same as genuine in the daily newspaper 'Samaja' and the weekly magazine 'Sunday'. The complainant-opposite party has further stated in his petition of complaint :

The accused persons published imputations as aforesaid concerning the complainant intending to harm and knowingly and having reasons to believe that such imputations will harm reputation of the complainant. Brother officers, close relations and friends are making various enquiries from the complainant about the said alleged receipts and letters published in the daily 'Samaj' and weekly 'Sunday'. The articles along with the purported letter of Sri Sahu and the receipts making imputation against the complainant have directly lowered the complainant in the estimate of others namely his brother officers, subordinates, relations, and friends. The imputations published in the said articles are directly in respect of the 'calling' and 'profession' of this complainant and has been considered generally as disgraceful on the complainant's part. Accused Radhanath Rath, Udayanath Sarangi, , Bappaditya Ray and M. J. Akabar have sold and offered for sale the printed substance containing the aforesaid defamatory matters throughout the State of Orissa and the whole of India knowing that it contains such defamatory matters. The papers' were sold and read in Khurda town and elsewhere.

After ascertaining the facts from Mr. Sahu, the complainant-opposite party applied to the higher authorities for permission to proceed against the petitioners and having received such permission, made the petition of complaint, as stated therein. In his statement-Under Section 200 of the Code, the complainant-opposite party has substantially stated the same facts.

4. The learned Sub-Divisional Judicial Magistrate passed the following order taking cognisance in respect of two of the offences alleged to have been committed :

Complaint petition is filed by one Balakrishna Swain Under Sections 192, 196, 420, 463, 464,468,471,474,499,501, read with Section 120B and 109,I.P.C. The complainant is examined on S.A. today. Perused the initial statement, complt. petition and documents filed today. As prima facie case Under Sections 500 and 501, I.P.C. is taken against all the accused persons, issue summon against them fixing 24-8-84 for their appearance.

5. Inviting my attention to the observations made in AIR 1942 Nag 117 : 1942-43 Cri LJ 856, Dr. N.B. Khare v. M.H. Masani, Mr. Palit has urged on behalf of the petitioners that no prima facie case has been made out against the petitioners for commission of offences punishable under sections 500 and 501 of the Indian Penal Code. He has contended that having not taken cognisance for alleged commission of offences punishable Under Sections 192, 196, 420, 463, 464, 468, 471 and 474 of the Indian Penal Code and having thus discarded the case of the complainant- opposite party that the documents in question were forged and fabricated ones, no case has been made out as the contents of the publications would prima facie be held to be true. Mr. Palit has contended that the case would be covered by Exceptions 1 and 2 of Sections 499 of the Indian Penal Code. He has further submitted that a suit has already been instituted against the complainant-opposite party by Mr. G.C. Sahu and this would further show that what had been published was correct and true and had been published with a bona fide belief and, therefore, there was no case against any of the petitioners. Mr. B.M. Patnaik, the learned Counsel for the complainant-opposite party, has contended that the allegations made in the petition of complaint and in the statement of the complainant-opposite party Under Section 200 of the Code did make out a prima facie case and the mere fact that cognisance had not been taken in respect of commission of some other offences including forgery would not show at this stage that the learned Sub- Divisional Judicial Magistrate had held that the documents including the receipts were genuine and the institution of a suit could have no effect on the pending criminal case. According to Mr. Patnaik, these matters are to be gone into at the stage of, trial after evidence is adduced and there is no case for admission.

6. The inherent jurisdiction of the High Court Under Section 482 of the Code to quash a criminal proceeding is to be exercised in a proper case to prevent an abuse of the process of the court or to secure the ends of justice. The criminal proceeding instituted against an accused person shall ordinarily be proceeded with in accordance with law. Where, however, the allegations made in the first information report or in the complaint, even on their face value and if accepted in their entirety, do not constitute an offence or the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, the High Court may exercise its power Under Section 482 of the Code. As the Magistrate at the stage of taking cognisance is restricted to finding out whether there is a prima facie case or not for proceeding against the accused person, the High Court is not to enter into a detailed discussion regarding the factual aspects and should not launch on a meticulous examination of the case on merit : and set aside the order of the Magistrate taking cognisance and directing issue of process against some accused persons. Whether there are sufficient materials to hold a person guilty of the offence is to be decided at the stage of trial and not while finding out as to whether there are materials to take cognisance and proceed against the accused. See : 1960CriLJ1239 R.P. Kapur v. State of Punjab : [1964]1SCR639 Chandra Deo Singh v. Prokash Chandra Bose : 1971CriLJ1110 Balraj Khanna v. Moti Ram : [1973]2SCR66 , Nirmaljit Singh Hoon v. State of West Bengal : 1975CriLJ812 , Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh : 1977CriLJ1146 , Dr. Sharda Prasad Sinha v. State of Bihar : 1978CriLJ165 , Madhu Limaye v. State of Maharashtra and : 1978CriLJ1687 , Hareram Satpathy v. Tikaram Agarwala. Some of the categories of cases where the inherent jurisdiction of the High Court to quash a criminal proceeding can and should be exercised are : (i) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged, (ii) where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged and (iii) where the allegations made against the accused person do constitute an offence alleged, but there is either no legal evidence adduced in suppport of the case or the evidence adduced clearly or manifestly fails to prove the charge. The inherent power is to be exercised by the High Court Under Section 482 of the Code when no other remedy is available and sparingly.

7. While the liberty of an individual is sacred and sacrosanct and the court would zealously guard and protect it, as observed by the Supreme Court in : 1982CriLJ819 , State of West Bengal v. Swapan Kumar Guha, when after application of mind on the basis of a petition of complaint made and the statement of the complainant recorded by the Magistrate, cognisance has been taken and such an order is sought to be quashed, it would not be legal and reasonable for the High Court at this stage to launch on a detailed and meticulous examination of the case on merits and find out as to whether there is sufficient material to hold the accused persons guilty of the accusations levelled against them as this is a matter which is to be decided at the trial and not at the stage of taking cognisance.

8. The Supreme Court has observed and held in : 1983CriLJ159 , Municipal Corporation of Delhi v. Ram Kishan Rohtagi, that Section 482 of the Code confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial, injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised as against the orders passed by the subordinate courts. Further, the power being an extraordinary one, it has to be exercised sparingly. The Supreme Court has laid down therein :

It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or substract ing any thing, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers Under Section 482 of the present Code.

9. In the instant case, it may not reasonbaly be said at this stage that the allegations made in the petition of complaint, if accepted in their entirety, would not make out any case for defamation. There is no legal bar against the institution or continuance of the present criminal proceeding in respect of the offence alleged. The allegations made against the petitioners do constitute the offences alleged for which cognisance has been taken. The trial has not been taken up and evidence has not been led. It cannot, therefore, be said that it is a case in which there is no legal evidence or the evidence adduced clearly or manifestly fails to substantiate the allegations.

10. As observed by Vivian Bose, J. (as he then was) in AIR 1942 Nag 117 : 1942-43 Cri LJ 856 (supra), the press and authors and publishers of books have no special privilege. They are in no better position than any other man. If they make assertions of facts as opposed to comments on them and those assertions are defamatory, they must either justify those assertions, or, in the limited cases specified in Exception 9 to Section 499 of the Indian Penal Code, show that the attack on the character of another was for the public good and that it was made in good faith. The learned Judge has observed :

I may state that Mr. Dutta who apeared for the non-applicants appreciated this and claimed no special privilege for his clients. Their Lordships also deal with the position of men in public positions and show that they can claim no immunity from criticisms even when the positions they hold are official. They show that though judge-baiting is a pastime not wholly unknown, not even Judges can claim any special immunity. I think it will be as well to reproduce their language again.

Upon the other side it would appear from certain observations of the learned Judge that this false and dangerous doctrine may have been hinted at, that some privilege or protection attaches to the public acts of a Judge which exempts him, in regard to these, from free and adverse comment. He is not above criticism, his conduct and utterances may demand it. Freedom would be seriously impaired if the judicial tribunals were outside the range of such comment. The present case affords a good illustration of what is meant.

That applies equally to other officials and to public men, even to Provincial Prime Ministers. It is the penalty they pay in free countries for the honour and privilege of occupying posts of exceptional responsibility, power and advantage. But there are limits to the attackes which may be made upon them. They are not wholly without protection. This is also set out by the Judicial Committee.

11. Hon'ble Mr. Justice A.P. Sen has observed in : 1981CriLJ894 , Sewakram Sobhani v. R.K. Karanjia, Chief Editor, Weekly Blitz (majority views) thus :

The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege, and have greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of a citizen. We hasten to add that journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under First Exception unless it is proved to be in the public good The question whether or not it was for public good is a question of fact like any other relevant facts in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or, in the limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was same in good faith : per Vivian Bose, J. in Dr. N.B. Khare v. M.R. Masani, ILR 1943 Nag 347 : AIR 1942 Nag 117 : 1942-43 Cri LJ 856.

12. Whether Exception 1 or Exception 2 or both or Exception 9 would apply to the present case would depend on the evidence adduced by the complainant-opposite party at the trial ; the pleas to be taken by the petitioners and the materials which may be produced in support of such pleas. It would be premature at this stage to assume the existence of any of the Exceptions to Section 499 of the Indian Penal Code.

13. The Supreme Court has held in : 1971CriLJ1168 , SukraMahto v. Basudeo Kumar Mahto that the ingredients of the Ninth Exception are firstly, that the imputation must be made in good faith ; secondly, the imputation must be for protection of the interest of the person making it or of any other person or for the public good. Good faith is a question of fact. So is the protection of the interest of the person making it. Public good is also a question of fact. Simple belief or actual belief by itself is not enough. It must be shown that the belief in the impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role. The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to Section 499. In the Ninth Exception, the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry, care and objective and not on subjective satisfaction.

14. The mere fact that a suit has been instituted by Mr. G.C. Sahu who has been named as a prosecution witness in the petition of complaint, would not, by itself, be sufficient to hold that the statements said to have been made by the petitioners which were defamatory as alleged in the petition of complaint were true. Merely because cognisance has not been taken in respect of the commission of some offences including forgery of the receipts would not also substantiate at his stage a plea of truth of the alleged defamatory statements. This could be because the learned Sub- Divisional Judicial Magistrate was of the view that there was absence of some- legal ingredients constituting the offence of forgery and the other offences alleged.

15. The stage for deciding whether the petitioners acted in good faith and for public good or not has not yet reached. The question can be decided only after the plea of the accused is recorded. It would be open to the complainant-opposite party to demolish the plea by such evidence as he may choose to adduce in this behalf.

16. As has been observed in : 1971CriLJ1110 (supra), the questionof applicability of the Exceptions to Section 499 of the Penal Code as well as of other defences that may be available to the accused person will have to be gone into during the trial and not at the stage of inquiry Under Section 302 of the Code. A defence plea based on any one of the Exceptions to Section 499 of the Penal Code can be considered and spelt out only after a trial is commenced and the plea of the accused is recorded Such a plea cannot be considered by the High Court at this stage in exercise of the inherent powers Under Section 482 of the Code unless it can be said that there is a clear abuse of the process of the Court or it is necessary to do so in the interests of justice. This conclusion of mine finds support in the view taken by the Delhi High Court in 1983 Cri LJ 777 (Delhi) S. Nihal Singh v. Arjan Das.

17. For the foregoing reasons, I am of the view that it cannot legally, reasonably and appropriately be said at this stage that there were no prima facie materials for taking cognisance in respect of the offences by the impugned order. The learned Sub-Divisional Judicial Magistrate shall now proceed with the trial. I must, however, keep on record that he shall not, in any manner, take into consideration or be prejudiced by any observations which have been made by me in this order for the purpose of disposal of this application made Under Section 482 of the Code and shall dispose of the case in accordance with law on the legal evidence placed before him.

18. The application Under Section 482 of the Code of Criminal Procedure is accordingly rejected and the Miscellaneous case stands dismissed.


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