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Sukamal Kanti Ghosh Vs. Shoulmari Ashram and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 40 of 1968
Judge
Reported inAIR1970Cal248,1970CriLJ809
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 198; ;Indian Penal Code (IPC), 1860 - Sections 499 and 500; ;Constitution of India - Article 20(2)
AppellantSukamal Kanti Ghosh
RespondentShoulmari Ashram and anr.
Appellant AdvocateAjit Kumar Dutt, ;Prasun Chandra Ghosh and ;Birendranath Banerjee, Advs.
Respondent AdvocateRamendra Kumar Roy, Adv.
Excerpt:
- .....jnanendra chandra banerjee, claiming himself to be a member and worker of the shoulmari ashram, p. s. mathabhanga and also to represent the said ashram, filed a complaint under section 500, i. p. c. on 4-1-1966 in the court of sri h. r. dass, magistrate, 1st class, mathabhanga, cooch behar, against the two accused, sookomal kanti ghose, editor of a bengali daily called the 'jugantar' and dhirendranath sen, printer and publisher of the said daily. the impugned publication is an item of news served by the p. t. i. and u. n. i., news agencies, and appeared in the issue of the above mentioned daily dated the 7th december, 1965 under the sub-heading 'shoulmari sadhu', the english translation whereof is as follows: 'the foreign minister stated that the sadhu of shoulmari who calls.....
Judgment:

N.C. Talukdar, J.

1. This Rule is connected with the other Rule disposed of by me viz.. Criminal Revision Case No. 1244 of 1967 and is for quashing the proceedings under Section 500 of the Indian Penal Code, pending before Sri A. K. Roy, Magistrate, 1st Class, Mathabhanga, Cooch Behar, in case No. C. R. 4 of 1966.

2. The facts leading on to the present Rule are short and simple. The complainant Jnanendra Chandra Banerjee, claiming himself to be a member and worker of the Shoulmari Ashram, P. S. Mathabhanga and also to represent the said Ashram, filed a complaint under Section 500, I. P. C. on 4-1-1966 in the Court of Sri H. R. Dass, Magistrate, 1st Class, Mathabhanga, Cooch Behar, against the two accused, Sookomal Kanti Ghose, Editor of a Bengali Daily called the 'Jugantar' and Dhirendranath Sen, Printer and Publisher of the said Daily. The Impugned publication is an item of news served by the P. T. I. and U. N. I., news agencies, and appeared in the issue of the above mentioned Daily dated the 7th December, 1965 under the sub-heading 'Shoulmari Sadhu', the English translation whereof is as follows: 'The Foreign Minister stated that the Sadhu of Shoulmari who calls himself to be Subhaschandra Bose is not Netaji and the Government has no least doubt about this fact that he is not'. The complainant alleged that as the offending publication containing harmful and defamatory imputations concerned the Ashram and therefore, the complainant as a member thereof, the said complainant, on his own behalf and on behalf of the Ashram, was the 'person aggrieved' and as such a competent person to file the complaint. The learned Magistrate observed that he was not competent to take cognizance and directed the file to be put up before the learned Sub-Divisional Magistrate who examined the complainant on solemn affirmation on 17-3-68 and summoned the two accused persons under Section 500, I. P. C. The two accused thereafter appeared before the learned Sub-Divisional Magistrate and were released on P. R. Bond and granted personal exemption, on being represented by their lawyers. An application thereafter was filed by the complainant praying for summons to be issued against two other accused persons viz., K. S. Ramchandram and Kuldip Nayar and on going through the said petition Sri H. R. Dass, Magistrate, 1st Class, Mathabhanga, Cooch Behar, by his order dated the 27th February, 1967 issued summons against the said two accused persons also under Section 500, I. P. C. The said proceedings under Section 500, I. P. C. were impugned and the present Rule was obtained.

3. Mr. Ajit Kumar Dutt, Advocate (with Messrs Prasun Chandra Ghosh and Birendranath Banerjee, Advocates) appearing on behalf of the accused-petitioners in support of the Rule made a three-fold submission, same as in the connected Rule, viz., that there has been no proper cognizance of the case due to a non-conformance to the mandatory provisions of Section 198 of the Code of Criminal Procedure inasmuch as the complainant is not a 'Person aggrieved' within the meaning of that section and the relevant proceedings have been vitiated thereby; that even if it be assumed that the petition of complaint discloses a defamation of the Ashram, thereby touching the complainant as a member thereof, no action would lie under Section 500, I. P. C. as the Ashram is an indeterminate body; and that the impugned publication is not in any way defamatory and in any event, the proceedings are not maintainable in law in the absence of the two news agencies which served the news item. Besides the three grounds referred to above, Mr. Dutt raised two ancillary grounds that the institution of the present proceedings at the Instance of the two complainants has been bad in law and Improper; and that two separate proceedings over the same subject-matter and for the same offence are not maintainable against the same accused inasmuch as apart from unnecessary harassment, the same may lead on to double jeopardy. Mr. Ramendra Kumar Roy, Advocate, appearing on behalf of the complainant-opposite party No. 2, adopted the arguments made by Mr. Jana In Crl. Revn. Case No. 1244 of 1967 (reported in : AIR1970Cal216 and submitted inter alia that there has been no non-conformance to the provisions of Section 198 of the Code of Criminal Procedure Inasmuch as the complainant-opposite party No. 2, Jnanendra Chandra Banerjee, being a member of the Ashram, is a 'person aggrieved' because the Head of the Ashram has been lowered in public estimation by the impugned publication: that the defamation alleged is not of an indeterminate body but of a particular Ashram, the religious Head whereof has been defamed, lowering all the members of the Ashram in public estimation thereby; and that on merits whether the Impugned publication is defamatory or not, is a question of fact and as such is premature at this stage.

4. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the legal materials on the record, I find that there is much force behind the first two contentions of Mr. Dutt, reasons wherefor have already been given in details in the judgment of the connected Rule and as such the present proceedings should be quashed. I hold however, that the third ground, being based ultimately on facts, is premature at this stage.

5. I will now deal with the two ancillary grounds raised by Mr. Dutt. The first one relating to the institution of the proceedings on a joint complaint by two complainants, is more technical than real and has not vitiated the resultant proceedings. The accused persons have not been prejudiced thereby. As to the maintainability of two separate proceedings over the same publication against the same accused persons and over the same offence, it is bad and improper and may lead on to double jeopardy under Article 20(2) of the Constitution of India. This contention of Mr. Dutt therefore, also succeeds.

6. In the result, I make the Rule absolute; and I quash the proceedings under Section 500, I. P. C. pending in the Court of Sri A. K. Roy, Magistrate, 1st Class, Mathabhanga, Cooch Behar, in case No. C. R. 4 of 1966.


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