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Judgment
Pradeep Nandrajog, J.—A person is identified by his name. His name may have no value to society but would be precious to the person
concerned. A good name is better than great riches. Shakespeare''s Othello, Act III, Scene 3, 167:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls;
Who steals my purse, steals trash; tis something, nothing;
T was mine, tis his, and has been slave to thousands;
But he that flinches from me my good name,
Robs me of that which not enriches him,
And makes me poor indeed.
Laws of defamation aims at protecting the name and goodwill of a person in society.
Backdrop facts giving rise to the present petitions are that in the year 2000 the Central Bureau of Investigation (CBI) registered a case against
some employees of DDA who were allegedly involved in a housing allotment scam. Smt. Usha Ravichandran, Senior Personal Secretary to
Commissioner (Personnel) was also accused of being involved in the scam. Thereafter, all the employees booked as accused by CBI including
Smt. Usha Ravinchandran were suspended. (Usha Ravichandran was suspended on 16.11.2000)
Subsequently, on 15.6.2001 suspension of Smt. Usha Ravichandran was revoked and she was reinstated. It is pertinent to note that Smt. Usha
Ravichandran was the only suspended employee to be reinstated.
On 4.5.2001, a news item appeared in the New Delhi edition of the newspaper ''Navbharat Times''. English translation of said news item reads
as under:
RESENTMENT AMONGST THE EMPLOYEES OF DDA OVER REVOCATION OF SUSPENSION OF USHA RAMCHANDRAN
Senior Correspondent, New Delhi.
There is a grave resentment among the employees of DDA over the news of revocation of suspension of Usha Ramachandran, Private Secretary
to Commissioner (Personal) DDA who is accused of bungling to the tune of several crores in allotment of DDA flats.
The CBI conducted raids in the month of November last year at the offices and residential premises of several officers of DDA including this
woman employee. A huge amount of cash, document relating to DDA houses were recovered from the possession. CBI had registered a case
against these officers after the recovery of this property.
According to leaders of the employees it is improper to revoke the suspension of only one accused out of seven accused persons by the officers of
DDA without obtaining permission from CBI. They alleged that this has been done at the behest of high level political recommendation.
According to sources this file has been sent to Chief Vigilance Officer of DDA on Thursday evening after taking decision to revoke the suspension
of Usha Ramchandran. Now orders in this regard have to be issued from there. According to sources that, being aware of the mysterious aspects
of this matter all the officers of DDA are reluctant to take decision on revocation of suspension of Usha Ramchandran and of becoming a party to
this decision, but they are being forced to do this by pressure of above.
On 21.6.2001, a news item appeared in the daily edition of the newspaper ''Hindustan Times''. Said news item reads as under:
Scam-tainted DDA staff gets her job back Aruna P. Sharma New Delhi, June 20
A DDA employee facing Central Bureau of Investigation (CBI) probe in connection with housing scandal, which broke out last year, has been
reinstated. The orders revoking suspension have been issued despite opposition from the CBI officials who were yet to complete their inquiry and
finalise report. The personal secretary of Commissioner, Personnel, Usha Ravichandran is the only employee under investigation who has been
reinstated while others continue to be under suspension.
The CBI had raided the premises of Usha and a number of employees last November in connection with fraudulent allotment of flats and illegal
refunds. She along with Ashok Kapoor, personal Secretary to the then Vice Chairman, Director Housing V.K. Shinged and others were
suspended following raids in their offices and residential premises.
A CBI official on condition of anonymity said there was pressure from the very beginning to reinstate Usha.
The last request for giving her clean chit came about two to three months ago but after that we have not been approached, the official said. He
added that there was evidence against Usha who was apparently a conduit for receiving payments for making favorable transfers and postings.
One of the accused M.L. Ahuja, Assistant Director Social Welfare had confessed to the investigating officials that he made regular payments to
Usha for transfers and postings.
Payment slips in the name of Usha were also found at Ahuja''s premises. Ahuja''s son Mohit is a property dealer and was doing housing related
work, the official added.
The reinstatement of Usha, who is allegedly close to the Commissioner, Personnel, has sparked off Personnel, has sparked off resentment in DDA.
Some of the employee union members said that there is little hope of tackling corruption if senior officials bend backwards to reinstate their
favorites. They pointed out that the reinstatement had been made in spite of clear instructions from the Central Vigilance Commission that clearance
is required from the agency on whose recommendation suspensions have been made; in this case the CBI.
They also said that she had reported back to Personnel Department on rejoining and had proceeded on leave immediately.
When contacted Vice Chairman of DDA, Prasanna Hota said that the reinstatement was made, as there was dire shortage of personal secretaries
in DDA. It was made after consulting the CVC. Finance Member Laxman Rao had also gone into the merits of the case.
Asked why only one suspended employee was reinstated, Mr. Hota said that if others made representation, their cases would also be considered.
In the absence of evidence against Usha, she was reinstated, Vice Chairman said. She has, however, not been posted in Personnel or Housing
departments, he pointed out.
On 24.6.2001, a news item appeared in the New Delhi edition of the newspaper ''Dainik Jagran''. English translation of said news item reads as
under:
HOUSING ALLOTMENT SCANDAL
Many questions take birth with the reinstatement of Private Secretary Naveen Gautam New Delhi: 24thJune. With the secret reinstatement of
Private Secretary to the Commissioner (Personnel) of Delhi Development Authority, accused in Housing-Allotment Scandal, many questions are
being raised. Whereas on the one hand, the Private Secretary''s proceeding on leave just after taking charge after her reinstatement is a hot topic of
discussion amongst the D.D.A. employees, on the other hand, other D.D.A. employees named as accused in the said Scandal have reason to
rejoice. They hope that they would also be reinstated. On seeing the said charged officials, people have started guessing as what will be the result
of the Enquiry of Housing Allotment Scandal.
It is worth consideration that in connection with Houses Allotment Scandal, C.B.I. last year on 10th November, while making raid at Vikas Sadan,
the Head Office of D.D.A., had registered cases against about a dozen persons, who were immediately suspended by the Authority. The
suspended officers included the then Director (Housing) V.K. Singh, Personal Secretary to the Vice- Chairman, Ashok Kapur, Joint
Commissioner (Housing-Self Financing Scheme) M.S. Sharma and also Usha Ravichandran, P.S. to the Commissioner (Personnel). Last week
Usha Ravichandran was secretly reinstated. But for the time being she has proceeded on leave after taking charge. Her reinstatement has become
a topic of discussion amongst the D.D.A. Officials. It is said that even after her suspension, Smt. Ravinchandran used to visit D.D.A''s Head
Office. She continued to visit the Authority''s Head Office every after two/three days and she often used to sit in the room of the Commissioner
(Personnel). Her visits to Vikas Sadan even after suspension are also confirmed from her car number entered in the register of Security Guards. It
is also a hot topic of discussion amongst the officials that Arvind Kumar, Commissioner (Personnel) has played a key role in the reinstatement of
Smt. Chandran. The sources of the Authority, while raising fingers at her reinstatement, state that last year in the months of June-July an
examination for promotion from L.D.Cs to the posts of U.D.Cs was held. The right of checking the said examination-papers was of the Director
(Nazarat) Mr. Jha. But Usha Ravichandran was given authority by the Director to check the copies related to the exam, which was out of her
power. C.B.I. during the raids had also seized the said copies and when the marks made thereon were got examined by Hand-Writing Expert, it
became clear from the said examination report that the said marks were given by Smt. Ravichandran. Sources say that during the checking of
copies of the said exam, lot of irregularities were made in which sixty L.D.Cs were promoted as U.D.Cs. It is a topic of discussion that when an
enquiry is under process then what is the justification of her reinstatement ''It is more specific that her reinstatement has been made by Member
(Finance) Laxman Rao, after clearance given by Joint Director (Vigilance) D.D.A, which is totally illegal. Whereas the right to give clearance is
only vest with the Chief Vigilance Officer. Besides that, C.B.I., while raiding the Sheikh Sarai flat of Smt. Chandran, had made an adverse report
regarding unauthorizedly constructed room on the roof-top and as well as the photographs thereof were taken. When the said matter is also still
under enquiry, then what is the justification of reinstatement'' Not only the C.B.I has also seized those documents, by which 32 Work Assistants
(Electricity Division) were directly promoted as Junior Engineers. The sources disclose that the said matter is also under investigation.
Well, whatever may be the result, but by the reinstatement of Usha Ravichandran, other suspended employees are very much hopeful. They now
feel that they will also be reinstated soon. For that some officers had been visiting Vikas Sadan from the very beginning. Amongst whom is also
Assistant Director M.S. Ahuja. His visits are confirmed from the register of the Security personnel of D.D.A., wherein the number of the vehicle is
entered. However, from the said action of reinstatement, the employees of D.D.A have now started admitting that the enquiry of Housing
Allotment Scandal will surely be effected.
Alleging that the afore-noted news items are defamatory and had directly or indirectly harmed and injured her reputation, Smt. Usha
Ravichandran, chief protagonist of said news items filed three complaints under Sections 499 and 500 of the Indian Penal Code, 1860.
Pertaining to news item published in the ''Hindustan Times'', complaint was filed against following three persons:
(i) Shobhna Bhartiya .... Managing Director
(ii) Vir Sanghvi .... Chief Editor
(iii) Aruna P. Sharma .... Correspondent
Pertaining to news item published in the ''Navbharat Times'', complaint was filed against following two persons:
(i) Vineet Jain .... Managing Director,
Benett Coleman and Co.
(ii) Ram Kirpal Singh .... Editor
Pertaining to news item published in the ''Dainik Jagran'', complaint was filed against following three persons:
(i) Narendra Mohan .... Chairman and Managing
Director (Since died)
(ii) Sanjay Gupta .... Chief Editor
(iii) Naveen Gautam .... Reporter
Vide order dated 1.2.2002, accused in all the three complaints were summoned by the learned Metropolitan Magistrate to face trial for an
offence u/s 500 of the Indian Penal Code.
By way of above captioned petitions, the petitioners invoke the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure,
1973 to quash the summoning order dated 1.2.2002. Details of the said petitions are as follows:
S. Crl. M.C. Names of Petitioners
No. No.
35/05 Shobhana Bhartiya, Vir Sanghvi, Aruna P. Sharma
350/05 Vineet Jain
2188/05 Ram Kirpal Singh
3898-99/05 Sanjay Gupta, Naveen Gautam
Principal contention advanced by the petitioners is that the said news items are neither defamatory nor have been made with reckless disregard
for the truth. Counsel for the petitioners contended that true facts have been reported in the news items in question. It was further contended that it
is the duty of a newspaper to expose corruption and bring to the notice of the general public the manner in which a public body is conducting its
affairs.
Per contra, learned Counsel for the complainant contended that the said news items are per se defamatory. Whether or not they contain true
facts or were published in public interest is a matter of defense. That it is settled law that courts cannot consider defense of a party at the stage of
quashing. Counsel relied upon following judgments in support of his argument:
(i) Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and Others, .
(ii) Sewakram Sobhani Vs. R.K. Karanjia Chief Editor, Weekly Blitz and Others, .
(iii) S. Nihal Singh and others Vs. Arjan Das, New Delhi, .
Every individual has a right to protect his reputation. Disparaging and defamatory statements made about a person to a third person or persons
without lawful justification or excuse are actionable in law. As observed by the Supreme Court in the decision reported as State of Bihar Vs. Lal
Krishna Advani and Others, reputation is an integral and important aspect of dignity of every individual. The right to preservation of one''s
reputation is acknowledged as a right in rem, a right good against all the world.
But freedom of speech and expression are the foundation of all democratic organisations. Freedom of expression stems from the requirement
that members of a democratic should be sufficiently informed. In the decision reported as Attorney General v. Times Newspaper Ltd. (1973) 3 All
ER 54, it was observed that freedom of expression has following four broad social purposes to serve:
(i) It helps an individual to attain self fulfilllment.
(ii) It assists in the discovery of truth.
(iii) It strengthens the capacity of an individual in participating in decision making.
(iv) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
The right of the print media to publish news pertaining to matters of public concern is recognized as an integral part of freedom of expression.
(See decisions of the Supreme Court in Virender v. State of Punjab AIR 1958 SC 986 and Sakal Papers (P) Ltd. and Others Vs. The Union of
India (UOI), .
The fundamental objective of journalism is to serve the people with news, views, comments and information on matter of public interest in a
fair, accurate, unbiased, sober and decent manner. It is the legitimate function of a newspaper in a democratic set up to act as the champion of a
clean administration and sentinel of public interest, and as such a newspaper is within its right to expose and bring to the notice of the general public
any lapse or malpractice in the working of a public authority including acts of nepotism and favoritism.
The law of defamation is a culmination of a conflict between society and the individual. On one hand lies the fundamental right to freedom of
speech and expression enshrined under Article 19(1)(a) of the Constitution of India, on the other is the right of individual to have his reputation
intact. How far does the liberty of free speech and expression extend? And when does it become necessary for the law to step in to safeguard the
right of the individual to preserve his honour. The law of defamation seeks to attain a balance between these two competing freedoms.
The classical definition of ''defamation'' has been given by Justice Cave in the case of Scott v. Sampson (1882) Q.B.D. 491, as a ''false
statement about a man to his discredit''.
In the book The Law of Defamation, by Richard O''Sullivan, QC and Ronald Brown, ''defamation'' is defined as a false statement of which the
tendency is to disparage the good name or reputation of another person.
As per Section 499, Indian Penal Code, offence of defamation consists of three essential ingredients namely:
(i) Making or publishing any imputation concerning any person.
(ii) Such imputation must have been made by words either written or spoken or by visible representation.
(iii) Such imputation must be made with the intention to cause harm or with the knowledge or having reasons to believe that it will harm the
reputation of the person concerned.
In the light of above discussion, it has to been seen whether news items in question are defamatory or a fair report pertaining to the affairs of
DDA, a statutory body charged with the planned development of Delhi.
Before proceeding to analyze the news items in question, I quote the well-known passage of Lord Shaw in the decision reported as Arnold v.
King Emperor (1913) 41 Ind. App. 149.
The freedom of the journalist is an ordinary part of the freedom of subject, and to whatever lengths the subject in general may go, so also may the
journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to this power in the dissemination of
printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his
comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.
Pertaining to news item published in ''Navbharat Times'', relevant allegations in the complaint are as follows:
That the Accused No. 1 to 3 caused a news item in ''Nav Bharat Times'' New Delhi Edition dated 4th May 2001, making false allegations that
the complainant was involved in illegal allotments of DDA Flats and misappropriated several crores of rupees. It is submitted that the complainant
had not worked in the Housing Department of DDA and, Therefore, the allegations that she was connected with housing scam is totally false,
malicious and defamatory. Copy of the said publication is annexed hereto and marked as ANNEXURE-D to this complaint.
That the accused No 1 to 3 made allegations in the news item, which is publicly circulated in the city and other parts of the country stating that
the on the raid conducted by CBI officers on the complainant a huge amount of cash, documents relating to various investments and documents
relating to DDA houses were recovered.
News item published in ''Navbharat Times'' centers around the facts that complainant was an accused in a housing scam being investigated by
CBI. That a search was conducted at her office and her residential premises. That she along with 7 others employees were suspended. That she
was the only suspended employee who was reinstated and that CBI had not given her a clean chit at the time of her reinstatement.
All these facts are a matter of record. What is reported in the said news item is statement of true facts. It is a fair and objective report of
correct facts. There are no insinuations and innuendo.
In the complaint, complainant has stated that news item has falsely alleged that she was involved in the illegal allotments of DDA flats and
misappropriated several crores of rupees, that she was working in Housing Department of DDA and that in the raid conducted by CBI officials
huge amount of cash, documents etc were found in her house.
The said news item does not report that complainant was involved in the housing scam. It merely reports that complainant is accused of being
involved in the scam, which is a true fact. The news item also does not report that cash, incriminating documents were found from complainant''s
house. The said news item reports that a raid was conducted by CBI at official as well as residential premises of various DDA employees including
complainant and that huge amount of cash and documents were recovered in the raids. It is a fact that a raid was conducted at the complainant''s
house and certain articles were seized by the CBI. The news item does not single out complainant. Complainant is trying to twist the said news
item.
Thus, news item published in ''Navbharat Times'' does not contain any defamatory imputations. It merely contains statement of true facts and is
published in public interest.
The Supreme Court in the decision reported as State of Haryana and others Vs. Ch. Bhajan Lal and others, considered in detail the ambit and
scope of Section 482 of the High Court to quash the investigation/FIR/complaints. The decision lays down following 7 circumstances in which such
a power could be exercised; -
Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against the accused.
Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence,
justifying an investigation by police officers u/s 156 of the Code except under an order of a Magistrate within the purview of Section 155(2) of the
Code.
Where the uncontroversial allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.
Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can
ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.
Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
Petition pertaining to news item in ''Navbharat Times'' clearly falls in the category 1 and 3 enumerated in Bhajan Lal''s case (supra).
Insofar as news item published in ''Hindustan Times'' is concerned, allegations in the complaint reads as follows:
That the said publication made by Accused No. 1 to 3 with regard to the news item that there was evidence against the complainant that she
was apparently a conduit for receiving payments for making favorable transfer and posting is totally wrong, derogatory and without any basis. The
Accused No. 1 to 3 by making such false and frivolous publication directly attributed the allegations against the complainant that she was involved
in the corrupt practices, which is parse defamatory and such imputation against her caused damage to her reputation, integrity, honesty and
sincerity towards her official duty. The said publication has been made maliciously with an intention to cause damage to the reputation of the
complainant and with a view to lower down her reputation in the society, official circles and amongst the friends and relations.
That the Accused No. 1 to 3 further published the false news item that one of the Accused Sh. M.L. Ahuja, Assistant Director, Staff Welfare,
confessed to the investigating officials that he made regular payments to the complainant for transfer and posting, which is totally false and
malicious....
That Accused No. 1 to 3 had made further publication, that the complainant was reinstated as she was allegedly close to Commissioner
(Personnel) is unfounded and parse defamatory. The suspension of the complainant was revoked on the basis of facts and circumstances of the
case on merits by the Competent Authority as per rules of services. Such publication damages the reputation of the character of the complainant
being a lady employee.
The focal point of the news item published in ''Hindustan Times'' is also the fact that the complainant was the only suspended employee who
was reinstated. However, the said news item does contains certain imputations which on a prima facie reading appear to be defamatory.
(Imputations which appears to be defamatory have been underlined in para 6 above.) As is evident from allegations in the complaint noted in para
34 above, complainant has placed stress on the specific part of the news item which are per se defamatory.
Pertaining to news item published in ''Hindustan Times'' petitioners sought to justify said imputations by relying upon a report stated to be filed
by CBI. Said report is dated 30.11.2000 and is annexed as Annexure-E of the petition.
However, complainant questions the veracity of the report relied upon by the petitioners. In her reply to the present petition complainant has
submitted that said report is a fabricated document.
In the decision reported as Sewakram Sobhani Vs. R.K. Karanjia Chief Editor, Weekly Blitz and Others, , Supreme Court considered a
complaint filed by the appellant against respondents for an offence u/s 500, IPC for publication of an news item which allegedly contained
imputations which were per se defamatory. Holding that news item in question was based upon an enquiry report, the High Court had quashed the
complaint. The High Court had observed that respondent''s case ''clearly falls within the ambit exception 9 of Section 499 of IPC'' and that ''it
would be abuse of the process of the court if the trial is allowed to proceed which ultimately would turn out to be a vexatious proceeding.'' The
reasoning advanced by the High Court was as follows:
The real question to ask is, did the applicants publish the report for public good, in public interest and in good faith'' My answer is in the
affirmative. It was a publication of a report for the welfare of the society. A public institution like prison had to be maintained in rigid discipline; the
rules did not permit mixing of male prisoners with female prisoners and yet the report said the prison authorities connived at such a thing, a matter
which was bound to arouse resentment and condemnation. The balance of public benefit lay in its publicity rather than in hushing up the whole
episode. Further, there was good faith in the publication. The source on which the publishers acted was the proper source on which they were
entitled to act and they did so with care and circumspection. The report further shows that the publication had been honestly made in the belief of
its truth and also upon reasonable ground for such a belief, after the exercise of such means to verify its truth as would be taken by a man of
ordinary prudence under like circumstances.
Reversing the decision of the High Court, the Supreme Court observed as follows:
We have considerable doubt about the propriety of the High Court making use of the Enquiry Report which has no evidentiary value and in
respect of which the Government claimed privilege. The application made by the Government claiming privilege still awaited consideration. While
the Government claimed privilege at one stage, it appears to have waived the claim and produced the Enquiry Report and made the contents
public. There was no factual basis for the observations made by the High Court underlined by me, except the Enquiry Report. The contents of the
Enquiry Report cannot be made use of unless the facts are proved by evidence aliunde. There is also nothing on record to show that the accused
persons made any enquiry of their own into the truth or other wise of the allegations or exercised due care and caution for bringing the case under
the Ninth Exception. The Enquiry Report cannot by itself fill in the lacunae.
A bare perusal of the offending article in Blitz shows that it is per se defamatory. There can be no doubt that the imputation made would lower
the appellant in the estimation of others. It suggested that he was a man devoid of character and gave vent to his unbridled passion. It is equally
defamatory of Smt. Shukla in that she was alleged to be a lady of easy virtue. We need not dilate on the matter any further. It is for the accused to
plead Ninth Exception in defense and discharge the burden to prove good faith which implies the exercise of due care and caution and to show that
the attack on the character of the appellant was for the public good.
Petitioners have not filed any document to show that the alleged status report in question emanated from CBI. It''s authenticity has to be
proved by leading evidence.
In view of decision of the Supreme Court in Sewakram Sobhani''s case (supra), no ground is made out for quashing the complaint pertaining to
the news item published in ''Hindustan Times'' on the basis that the news item is a true and faithful report of a fact.
Pertaining to news item published in ''Dainik Jagran'', relevant allegations reads as follows:
That on the report of Accused No. 3, a news item was published in the ''Dainik Jagran'', New Delhi Edition, dated 25.06.2001, that the
complainant was involved in a housing scam (while the complainant has never worked in housing department) and that the revocation of her
suspension encouraged the other DDA employees to indulge in corruption. It is further alleged in the publication that Mr. Arvind Kumar,
Commissioner (Personnel) played the main role in reinstatement of complainant. It is further alleged in the said publication that the complainant was
given the answer sheet by the Director (nazarat) and gave marks, which was proved by handwriting experts. It is further alleged in the said
publication that the complainant was reinstated by Joint Director(Vigilance). It is further alleged that documents were seized by CBI regarding the
promotion of 32 Works Assistants (Electrical Department) directly to the post of Junior Engineer.
According to the complainant, said news item contains following 4 defamatory imputations:
(i) That complainant was involved in the housing scam.
(ii) That Commissioner (Personnel) played a key role in the reinstatement of complainant.
(iii) That complainant checked certain examination papers which was outside the scope of her powers.
(iv) That complainant was wrongly reinstated.
The said news item does not report that the complainant is involved in the housing scam. It merely reports that the complainant is accused of
being involved in the housing scam which is a true fact. Further, the mere statement that the Commissioner (Personnel) played a key role in the
reinstatement of the complainant is not a defamatory statement.
It is relevant to note that defamation can be caused by following two ways:
(i) By direct imputation.
(ii) By way of innuendo.
Innuendo are those expressions which are not actionable on their face, but which become so by the reason of the peculiar situation or occasion
upon which the words are written or spoken. In simple words, innuendo means an indirect accusation.
News item published in ''Dainik Jagran'' reports that the complainant checked certain examination papers; that checking of said papers by the
complainant was outside her powers; that investigations revealed that there were lot of irregularities in the checking of said papers; that the matter
is under investigation.
This part of the said news item is an innuendo as it is suggestive of the fact that complainant is a corrupt and dishonest lady.
Pertaining to news item published in '' The Dainik Jagran'' petitioners have not disclosed the source/basis of alleged defamatory imputations. In
their petition, it is merely stated that said news item is based upon true facts.
Matter pertaining to news item published in ''Dainik Jagran'' thus require a trial in as much as persons responsible for publication of said news
items will have to establish that news item in question was based upon true facts.
The next question which needs to be answered is whether any criminal liability can be fastened on the petitioners or in other words whether the
petitioners are the persons responsible for publication of said news items.
In Crl. M.C No. 35/05, petitioner No. 1, Ms. Shobhna Bhartiya is the Managing Director, HT Media Ltd, petitioner No. 2, Mr. Vir Sanghvi
is the Chief Editor, HT Media Ltd. and petitioner No. 3, Ms. P. Aruna Sharma is the reporter who wrote the news item published in ''Hindustan
Times''. In Crl. M.C. No. 350/05, petitioner, Mr. Vineet Jain is the Managing Director, Benett Coleman and Co. In Crl. M.C. No. 2188/05,
petitioner, Mr. Ram Kirpal Singh is the editor of Navbharat Times. In Crl. M.C. No. 3898-99/05, petitioner No. 1, Mr. Sanjay Gupta is the Chief
Editor of Dainik Jagran and petitioner No. 2, Mr. Naveen Gautam is the reporter who wrote the news item published in ''Dainik Jagran''. This is
precisely how petitioners have been described by the complainant in the complaints.
Primarily, a reporter is responsible for his act of defamation. Then, vicarious liability is fastened on the printer, publisher and editor of the
newspaper under the Press and Registration of Books Act, 1967.
Section 1(1) of the Press and Registration Act, 1867 defines ''Editor'' as a person who controls the selection of the matter that is published in a
newspaper. Section 3 stipulates that every book or paper shall legibly print on it the place of printing; the name of the printer and the name of the
publisher. Section 5 stipulates that every printer and publisher of a newspaper shall make a statutory declaration before a competent Magistrate in
the prescribed form. Section 6 stipulates regarding authentication of a declaration made u/s 5. Lastly, Section 7 stipulates as under:
Office copy of declaration to be prima facie evidence -- In any legal proceeding whatever, as well civil as criminal, the production of a copy of
such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declaration, or, in the case
of the editor, a copy of the newspaper containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be
sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper as the case may be,
that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of
every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration or the editor of every portion of
that issue of the newspaper of which a copy is produced.
In view of provisions of Press and Registration Act, 1867, particularly Section 7 unless the contrary is proved, the persons declared as printer,
publisher and editor of the newspaper are presumed to be responsible for the contents of the newspaper.
Whether any person other than the Printer, Publisher and Editor can be prosecuted for a defamatory article?
In context of afore-noted question, it is relevant to note the following judicial pronouncements.
(i) State of Maharashtra Vs. Dr. R.B. Chowdhary and Others, :- The public prosecutor filed a complaint u/s 500 IPC against four persons who
were members of the Editorial Board of a Marathi weekly named ''Maharashtra''. One of the accused, Sudhakar Gopal Madane, had filed the
declaration in the prescribed form under the Act describing himself as the editor, printer and publisher of the newspaper. The particular copy of the
Maharashtra in which the alleged defamatory article appeared bore the name of one Madane as the printer, publisher and editor of the newspaper.
It also showed on the front page that the Editorial Board consisted of Madane and three other accused. The question arose whether the members
of Editorial Board could be prosecuted for defamatory article. Adverting to Section 7, the Supreme Court held that:
The term ''editor'' is defined in the Act to mean a person who controls the selection of the matter that is published in a newspaper. Where there
is mentioned an editor is a person who is responsible for selection of the material. Section 7 raises the presumption in respect of such a person.
The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly was printed as
the Editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been
produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will
attach to Madane as having selected the material for publication in the newspaper. It may not be out of place to note that Madane admitted that he
had written this article. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as
editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question. On the
whole Therefore the order of discharge made by the learned single Judge appears to be proper in the circumstances of the case and we see no
reason to interfere.
(ii) Haji C.H. Mohammad Koya Vs. T.K.S.M.A. Muthukoya, :- Question before Supreme Court was whether the Chief Editor of a newspaper
can be prosecuted for publication of a defamatory article. In para 34 of the decision, Supreme Court observed as under:
From the facts established above, it is manifest that the petitioner has miserably failed to prove either that the appellant was the editor of the
paper or that he was performing the functions, duties or shouldering the responsibilities of the editor. It is obvious that a presumption u/s 7 of the
Press Act could be drawn only if the person concerned was an editor within the meaning of Section 1 of the Press Act. Where however a person
does not fulfill the conditions of Section 1 of the Press Act and does not perform the functions of an editor whatever may be his description or
designation, the provisions of the Press Act would have no application....
(iii) K.M. Mathew Vs. State of Kerala and another, :- In relation to prosecution of Chief Editor of a newspaper for publication of a defamatory
news article, Supreme Court observed as under:
In the instant case there is no averment against the Chief Editor except the motive attributed to him. Even the motive alleged is general and
vague. The complainant seems to rely upon the presumption u/s 7 of the Press and Registration of Books Act, 1867 (''the Act''). But Section 7 of
the Act has no applicability for a person who is simply named as ''Chief Editor''. The presumption u/s 7 is only against the person whose name is
printed as ''editor'' as required u/s 5(1). There is a mandatory (though rebuttable) presumption that the person whose name is printed as ''Editor'' is
the editor of every portion of that issue of the newspaper of which a copy is produced. Section 1(1) of the Act defines ''Editor'' to mean ''the
person who controls the selection of the matter that is published in a newspaper''. Section 7 raises the presumption in respect of a person who is
named as the editor and printed as such on every copy of the newspaper. The Act does not recognise any other legal entity for raising the
presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him u/s 7 of the Act. See State of
Maharashtra Vs. Dr. R.B. Chowdhary and Others, ; D.P. Mishra Vs. Kamal Narain Sharma and Others, ; Shri Harasingh Charan Mohanty Vs.
Sh. Surendra Mohanty, ; Haji C.H. Mohammad Koya Vs. T.K.S.M.A. Muthukoya, .
It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in
the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In
the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be
proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No
person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of
the High Court is set aside.
(iv) S. Nihal Singh and others Vs. Arjan Das, New Delhi, :- A learned Single Judge of this Court was considering whether the Chairman and
Executive Editor of a newspaper could be prosecuted for publication of a defamatory article. With reference to Chairman, it was observed as
under:
Needless to say that as Chairman of the Company Shri Goenka can be held liable for the publication of the offending news items only if it is shown
that he was somehow concerned with the publication of the defamatory news items. It is highly doubtful that he can be asked to answer the charge
of defamation merely because he happened to be the Chairman of the Company owning the newspaper without there being any further evidence as
regards his participation in the actual management and administration of the affairs of the company. Intention on the part of the accused to harm the
reputation or the knowledge or reasonable belief that an imputation will harm the reputation of the persons concerned is an essential ingredient of
offence u/s 400, IPC but such evidence is totally missing in the instant case. Under the circumstances the impugned order as regards Shri Goenka
cannot be sustained on this short ground.
After referring to Section 3, 4, 5, 6 and 7 of the Press and Registration of Books Act, 1867, the learned Judge added:
However, it is difficult to draw such a presumption in the case of other petitioners viz., Arun Shorie, petitioner No. 2 and A. P. Dhar petitioner No.
Their names do not find place in the declaration printed on the newspaper itself and there is no iota of evidence to show that they are in any
manner concerned with the collection, control or selection of the matter printed in the newspaper. Their designations as Executive Editor/Editor of
the Express News Service will not per se warrant an inference that they are in any way responsible for the selection of the material. An authority
for this view may be found in the State of Maharashtra Vs. Dr. R.B. Chowdhary and Others, .
(v) Sardar Bhagat Singh Akali v. Lachman Singh AIR 1968 SC 269:- Calcutta High Court was considering the extent of the liability of the owner
for defamatory statements published in the paper owned by him. In para 5 of the decision, it was observed as under:
The owner in order to be liable u/s 499 of the Code has to have direct responsibility for the publication of the defamatory statement and he must
also have the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the person concerned. The owner
of a journal has thus no responsibility under the section. The editor of the paper, even though he might not be directly responsible for a defamatory
statement published in his paper attract the responsibility by virtue of Section 7 of the Press and Registration of Books Act by virtue of his
registration as editor under the Act which registration is sufficient evidence that he was also the printer or publisher of the paper concerned. The
printer and publisher by virtue of their duties as such cannot of course avoid, the legal liability for defamation. The owner''s liability will be attracted
provided it can be shown that he was responsible for the publication with the necessary interest, knowledge or reasonable belief in the matter.
From the afore-noted judicial pronouncements, legal position which emerges is as follows:
(i) Besides persons declared as editor, printer and publisher of a newspaper, only such person could be prosecuted for an action of defamation
against whom specific and clear allegations has been made in the complaint that either he was responsible for selection of the defamatory matter or
had personal knowledge about the contents of the defamatory matter. In addition, it must also be averred in the complaint that such person had the
intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the complainant.
(ii) The Chairman or the Managing Director of the company owning a newspaper is neither the editor, nor the printer nor the publisher and
Therefore no presumption could be drawn against holder of these offices even though they are, by reason of the offices held by them, in charge of,
and responsible to, the company for the conduct of its business.
Vis-a-vis petitioner Nos. 1 and 2 in Crl.M.C.No.35/2005, petitioner in Crl.M.C.No.350/2005 and petitioner No. 1 in Crl.M.C.No.3898-
99/2005, the complaints filed against them does not contain any such averments. General and vague has been made against these petitioners.
It is relevant to note following observations of the Supreme Court in the decision reported as S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla
and Another, :
...The normal rule in the cases involving criminal liability is against vicarious liability, that is, no one is to be held criminally liable for an act of
another. This normal rule is, however, subject to exception on account of specific provision being made in statutes extending liability to others.
Section 141 of the Act is an instance of specific provision which in case an offence u/s 138 is committed by a Company, extends criminal liability
for dishonour of cheque to officers of the Company. Section 141 contains conditions which have to be satisfied before the liability can be extended
to officers of a company. Since the provision creates criminal liability, the conditions have to be strictly complied with. The conditions are intended
to ensure that a person who is sought to be made vicariously liable for an offence of which the principal accused is the Company, had a role to play
in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable. In other words, persons
who had nothing to do with the matter need not be roped in....
Even otherwise, under the Indian Penal Code, no person can be prosecuted and punished for an offence committed by other person except in
following 4 situations:
(i) When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the
same manner as if it were done by him alone.(Section 34, IPC)
(ii) When a person abets commission of an offence, he who abets is liable for the offence committed in pursuance of abetment. (Section 107, IPC)
(iii) When an offence is committed in pursuance of a criminal conspiracy, all conspirators are liable for the offence committed (Section 120B, IPC)
(iv) When an offence is committed by a member of an unlawful assembly in furtherance of common object of assembly, all persons who were
members of such assembly at the time of the commission of the offence are liable for the offence committed. (Section 149, IPC)
In the instant case, there is no averment that said news item was written and published at the instance of and in furtherance of common intention
of all the petitioners. The averments in the complaints also do not make a case of abetment or conspiracy.
In the absence of necessary averments in the complaint against these petitioners, learned Magistrate was not justified in issuing summoning
order against them.
Petitioner No. 3 in Crl.M.C.No.35/2005 and petitioner No. 2 in Crl.M.C.No.3898-99/2005 are the reporters of the alleged defamatory news
items and Therefore will have to face the trial.
The net result of the above discussion is summarized herein below:
S. Name of the Petition No. Result Reasons
No. petitioner
Shobhna Bhartiya 35/2005 Allowed. Summoning order quashed.
Complaint filed against her does not contain necessary averments.
Vir Sanghvi 35/2005 Allowed. Summoning order quashed.
Complaint filed against him does not contain necessary averments.
Aruna P. Sharma 35/2005 Dismissed. Being reporter of the alleged
defamatory news item, she
is liable.
Vineet Jain 350/2005 Allowed. Summoning order quashed
i. News item in question does not contain any defamatory statements.
ii. Complaint filed against him does not contain necessary averments .
Ram Kirpal Singh 2188/2005 Allowed. Summoning order quashed.
News item in question does not contain any defamatory statement.
Sanjay Gupta 3898-99/2005 Allowed. Summoning order quashed.
Complaint filed against him does not contain necessary averments .
Naveen Gautam 3898-99/2005 Dismissed. Being reporter of the
alleged defamatory news
item, he is liable.
No costs.