A.P. Ravani, J.
1. Outside the Parliament, a Member of Parliament, cannot claim any higher privilege, than that of an ordinary citizen. If he makes a defamatory statement in respect of any person before Press or Public, he cannot claim protection of Parliamentary privilege. But the question is when he makes a representation before the highest authority of the country, with respect to smuggling and other nefarious activities in the area of his constituency and draws the attention of the authority towards the inaction and complacency of the Government officers concerned, and incidentally refers to some unlawful actions (not smuggling) of the complainant and points out that the concerned Government officer was inactive and complacent in this regard would it amount to defamation of the complainant Is the statement so made during the course of representation by an M. P. not required to be read in proper context If so read, can an intention to cause harm to the reputation of the complainant be imputed to him In the background of the facts which follow, the aforesaid questions are required to be answered.
2. Opponent No. 1 herein filed a complaint on 29th June, 1982, in the Court of JMFC, Bhuj, alleging that a news item which appeared in 'Sandesh' daily dated 26th April 1982 was pertaining to him and it was defamatory. He stated that he was a leading citizen belonging to Mohammadan community and was a social worker and was holding an important status in Alhedi Community and he had performed 'Haj' pilgrimage. As per his complaint accused No. 1 (petitioner herein) contested Lok Sabha election in 1977 and at that time he had requested for contribution to election funds and for the support, but he had refused and since then the accused was harbouring malice against him. He further complained that with a view to keep pressure upon him, a letter was concocted and sent to the Prime Minister in the name of a fictitious person called 'Ismail'. Taking the shelter behind this fake letter, the details thereof were published in leading newspapers of Gujarat and he was involved in the alleged activity of smuggling. He further alleged that accused No. 1 with the help of accused Nos. 2 and 3 (Editor and Managing Editor of 'Sandesh' daily respectively against whom the case has been compounded later on and who have been ordered to be acquitted) got published a writing involving him in the smuggling of gold worth Rs. 1.5 crores and describing that he was a smuggler and was taking interest in the smuggling activity. It was further stated that he was being addressed as 'Kutchi Mastan'. According to him, all this was done with a view to harm his reputation and cause him mental torture and pain. He then referred to the writing in question and on that basis he prayed that an offence under Section 500 read with Section 34 of the Indian Penal Code was committed by the accused and prayed for a process to be issued against each of them. The complaint was filed on June 29, 1982. He was examined on the same day. In his preliminary examination he stated that as per the contents which appeared in 'Sandesh' dated April 26, 1982, he was defamed by the accused.
3. The learned Magistrate ordered to register the complaint and also ordered to issue summons under Section 500 read with Section 34 of the Indian Penal Code against all the accused. In response to the summons, all the accused appeared before the learned Magistrate. After some proceedings of the case, i.e. on December 30, 1982, complainant-opponent No. 1 herein and original accused Nos. 2 and 3, i.e., Chimanbhai Patel and Falgun Chimanlal Patel, jointly filed pursis, Exh. 20, in the Court and declared that the case against accused Nos. 2 and 3, i.e., against the publishers of the news item in 'Sandesh' daily was compounded. The complainant categorically stated that he was not desirous to proceed further with the complaint against the accused Nos. 2 and 3 and his complaint against accused No. 1 only (i.e. Dr. Mahipatrai M. Mehta, petitioner herein) be proceeded further. The learned Magistrate recorded the composition and in view of the composition, ordered to acquit accused Nos. 2 and 3, and also ordered to proceed further against accused No. 1 petitioner herein, in accordance with law.
4. Thereafter it appears that, during the pendency of the proceedings, the complainant was detained under the provisions of COFEPOSA Act or under NSA. It is not necessary here to go into the details of various detention orders passed against the complainant even in part and after the initiation of the present proceedings. For our purposes, it may be noted that on July 19, 1983 when the case was pending in the Court of JMFC, Bhuj, the complainant was under detention in Sabarmati Jail at Ahmedabad. The case instituted by the complainant being a summons case might have resulted into acquittal of the petitioner-accused on account of the absence of the complainant. However, the learned Magistrate appears to have written a letter addressed to the Superintendent of Sabarmati Jail, Ahmedabad, informing him that the complainant of Criminal Case No. 1100 of 1982, i.e., opponent No. 1 herein, was in custody for some offence and his presence was required on August 2, 1983 in the court; therefore necessary steps for keeping the complainant present in court on the day of hearing were required to be taken. There does not seem to be any application submitted by the advocate for the complainant requesting the learned Magistrate to write the letter as stated above. It is not understood how the learned Magistrate came to know that the complainant was in custody for some other offence. As a matter of fact, as stated at the Bar, the complainant was a detenu and not an accused under some offence. The procedure adopted by the learned Magistrate is very much unusual and not easily understandable. As required by the learned Magistrate, on August 2, 1983 the complainant was present in court. But on the ground of health, he requested that he be not examined. The learned Magistrate granted the application and adjourned the case for recording of evidence of the complainant.
5. Some time thereafter the petitioner original accused No. 1, has moved this High Court and has prayed that the proceedings of criminal case pending against him in the court of JMFC, Bhuj, be quashed and set aside.
6. The case of the opponent-complainant was that all the accused in furtherance of their common intention have published the news report. Initially he filed complaint against the petitioner and two others, i.e., Editor and Managing Editor of 'Sandesh' daily. The essence of the offence of defamation is in the publication of a defamatory statement. The case of the complainant was that accused Nos. 2 and 3, Editor and Managing Editor of 'Sandesh' daily, published the offending report. His further case was that the report was given to the Press by accused No. 1-petitioner herein. Still however, the opponent-complainant compounded the case against accused Nos. 2 and 3 and requested that they may be acquitted and the trial court passed an order accordingly. Once the accused who were responsible for publication of the offending news report were acquitted and when it was stated that there was no case against them, it is not understood, how the petitioner-accused can be proceeded against In a given case, it may be possible to proceed against a person who may be the originator of the news report in question. Whether it is possible for the opponent-complainant to proceed only against the petitioner-accused, who himself has not published the newspaper report and who is admittedly not concerned with the management of the newspaper, is not required to be decided in this case. But this circumstance reveals an altogether another aspect of the matter. The opponent-complainant himself stated in his complaint that on account of political rivalry some persons have cooked up a report against him and the petitioner-accused had, on account of political rivalry, made representation before the Prime Minister. His further case was that the petitioner-accused was responsible for getting the news report published in 'Sandesh'. In this background and in view of the fact that the case against the Editor and Managing Editor of 'Sandesh' has been compounded, it was sought to be argued by the counsel for the petitioner-accused that it was on account of political rivalry and in view of the fact that even the name of one of the Deputy Ministers of the State of Gujarat was involved and referred to in the report, false complaint against the petitioner was filed and he was being persecuted. It was alleged that the process of court was being utilised as an instrument for squaring up political vendetta.
7. In the instant case it does appear that the case may be the result of instigation by a rival political party or faction. As per the newspaper report in question, a Deputy Minister of the State was alleged to be involved in the smuggling activity. The counsel for the petitioner states that the accused belongs to an opposition party and he has ceased to be a member of the Ruling Party and he is a leading worker of Rashtriya Congress. This factual position is not denied by the other side. Therefore, in his submission it should be held that the complaint is false and the same is filed at the instigation of a rival political faction and is aimed at harassing the petitioner-accused unnecessarily. Hence, it is prayed that the proceedings initiated by the complainant be quashed and set aside. The newspaper report in question, in so far as it pertains to the opponent-complainant is not per se defamatory and on the basis of this report, it cannot be said that the petitioner-accused had intended to cause harm to the reputation of the complainant. This point will be made clear little later. Therefore, without going into the question of political rivalry and the probability of complaint having been filed at the instigation of some other political party or faction, the petition is required to be decided.
8. It is contended the news report which has been produced at Annexure 'B' to the petition does not involve the opponent-complainant in smuggling activity and the report is not per se defamatory of the opponent-complainant. It is further contended that, if the report is read in proper context, it is directed against the Government administration and not against any individual as such, much less against the opponent-complainant. It was the bounden duty of the petitioner-accused to bring it to the notice of the Prime Minister that illegal and unauthorised activities were being carried on in the coastal region of Kutch area of Gujarat State. It is further contended that the petitioner-accused has given details as received and he had no intention to cause harm to the reputation of any person and if the report is read in proper context, it would be clear that no one can have reason to believe that the report was intended to cause harm to the reputation of the complainant or that to the reputation of any other person.
9. The news report in question is produced at Annexure 'B' to the petition and the alleged imputation with respect to the opponent-complainant refers to the following things:
1. That the complainant has constructed a two-storeyed building outside Bhid-naka on land illegally encroached upon by him.
2. It was within the knowledge of the Collector and yet no action was being taken, and
3. That he is known as 'Kutchi-Mastan'.
It would be clear that this part of the report nowhere refers to the smuggling activity whatsoever either that of the complainant in particular or smuggling activity in general. Therefore, the averment made in the complaint to the effect that the complainant was being involved in the smuggling scandal of gold worth Rs. 1.5 crores seized in Ahmedabad and that he was taking interest in smuggling activities, has no basis whatsoever. These things do not appear at all in connection with the complainant. Part of the report which pertains to the complainant has reference to alleged illegal encroachment and the inaction on the part of the Collector in this behalf. It is not the case of the complainant that on account of the alleged illegal encroachment he has been defamed. In paragraph 7 of the complaint he has repeated that on account of the insinuation with regard to the alleged smuggling activity he has been defamed and his prestige amongst the people known to him is lowered down. Therefore, the question is, can it be said that the part of the report which refers to the complainant is per se defamatory ?
10. It is pertinent to note that the exact words used before the journalists or newspaper reporters are not before the court; nor are they reproduced in the complaint. Even the complainant has thought it proper not to proceed against the publishers of the report and they are acquitted as the case against them is compounded. In the facts and circumstances of the case, it is necessary to keep in mind the context in which the aforesaid report has been given. In cases of defamation it may be that the exact words used by the accused may not be necessary to be proved, but the purport and substance of the words used must be proved. When the words proved are examined in the background of the purport, it should be possible to infer that the words were used by the accused with a view to cause harm to the reputation of the complainant. In this case it is an admitted position that the petitioner is an elected representative of the people. He is a Member of Parliament (Lok Sabha). It is also an admitted position that he made report to the Prime Minister with regard to the smuggling activity and also with regard to the slackness in the administration. If the entire news report is read in proper contex, it becomes clear that the reference to the opponent complainant is only incidental. If one looks at the tenor of the report, it is clear that in so far as it pertains to the opponent-complainant, the report only incidentally refers to the alleged illegal encroachment of Government land. The thrust is against the inaction on the part of the Collector and the report nowhere refers to the alleged smuggling activity of the opponent-complainant. Therefore it cannot be said that the words used were intended to harm the reputation of the complainant. The intention of the accused has to be inferred from the context in which the report is made. The context clearly suggests that the petitioner-accused was discharging his normal duty as a Member of Parliament. He had made certain representation to the Central Government with regard to the smuggling activities in Kutch region. Mere incidental reference to the alleged encroachment on Government land by the opponent-complainant and alleged inaction by the Collector in this behalf cannot be said to have the effect of harming the reputation of the opponent-complainant. In fact that is not the grievance made by the complainant himself also. It is not understood how the complainant got the impression that the smuggling activity referred to in the report had connection with him. This may be on account of his personal prejudices against the petitioner-accused or it may be on account of his own guilty conscience or as suggested by the counsel for the petitioner, this may be the result of instigation by rival political faction. Be that as it may. The news report, as it is, does not show that the petitioner-accused had used any words intended to harm the reputation of the complainant or that the effect of such words was that they may cause harm to the reputation of the complainant. By no stretch of reasoning it can be said that the news report published is per se defamatory. Hence, without anything more, no case of defamation whatsoever can be said to have been made out. Simply because the complainant avers to that effect in his complaint, the newspaper report does not become defamatory. As to whether an alleged statement is as a matter of fact an insinuation causing harm to the reputation of the complainant is required to be seen by the learned Magistrate before he issues process. In this case it appears that the learned Magistrate has ordered to issue process even without reading the newspaper report in question. As stated hereinabove, if the newspaper report is read in proper context, it does not amount to per se defamation of the complainant-opponent herein.
11. Counsel for the petitioner-accused submitted that as a Member of Parliament the petitioner was duty bound to report to the proper executive authority with regard to the illegal smuggling activity and the inaction on the part of the Government officers. Nobody disputes the duty of a Member of Parliament in this behalf. The point is whether can he claim any privilege of even making defamatory statements while making representation in the course of discharge of his duties as a Member of Parliament I am afraid a Member of Parliament or as M.L.A. cannot claim any higher privilege outside the Parliament or outside the Legislative Assembly, as the case may be. However, when a representation before proper executive authority is made, in due discharge of his duties as a chosen representative of the people, the entire context of the statements made therein changes and in that context the statements made therein are required to be examined. Ordinarily, it cannot be said that a Member of Parliament would make such statement in a representation to the highest executive authority with an intention to cause harm to the reputation of a third person. Such statements made by the elected representatives of the people should be read as a whole and the purport and substance thereof should be gathered while keeping in view his public duties as a chosen representative of the people. In this case no statement referring to the alleged smuggling activity of the complainant is made and whatever the statement with regard to the alleged illegal encroachment and inaction on the part of the Collector is made, has no effect of causing harm to the reputation of the opponent-complainant, in fact even the complainant has made no grievance on this score. Hence, no case of defamation is made out against the petitioner-accused.
12. The counsel for the opponent-complainant relied upon a decision of the Supreme Court in the case of Sevagram v. R.K. Karanjia reported in : 1981CriLJ894 In that case the Editor of a weekly had published a report stating that the complainant was involved in a sex scandal. The complainant was a R.S.S. leader of Madhya Pradesh. The defence of the accused was that his case was covered by an Exception to Section 499 of the Indian Penal Code. The High Court after perusing the report which was made available to it at the revisional stage believed the defence of the accused and ordered to quash the proceedings. In that context the Supreme Court held that, as to whether the case of the accused was covered by that Exception or not cannot be decided at the preliminary stage. This being a question of fact, the trial must proceed further and it may be that the accused may be ultimately acquitted. The Supreme Court further held that a journalist does not enjoy any special privilege greater than an ordinary citizen so as to ruin the reputation of a citizen. The principles laid down in the aforesaid case may or may not be applicable to the Members of Parliament also as and when they make any such statement outside Parliament so as to cause harm to the reputation of others. But that question does not arise in this case. In the instant case the report itself is not per se defamatory. The main thrust of the report is against the smuggling activity in the Kutch area of Gujarat State. The specific reference to the name of the complainant is with regard to the alleged encroachment on Government land and inaction on the part of the Collector in this behalf. This part of the news report is not considered defamatory even by the complainant. In this view of the matter, the decision cited by the counsel for the opponent-complainant is of no help to him in this case.
No other contention is raised.
13. In this view of the matter, it is clear that the learned Chief Judicial Magistrate, Bhuj, has clearly erred in ordering to issue process against the petitioner and hence the same requires to be quashed and further proceedings of Criminal Case No. 1100 of 1982 are also required to be quashed and ordered to be dropped.
14. In the result, the order to issue process passed by the learned Chief Judicial Magistrate, Bhuj-Kachchh, in Criminal Case No. 1100 of 1982 is quashed and the further proceedings of Criminal Case No. 1100 of 1982 are ordered to be dropped. Rule made absolute to the aforesaid extent.