R. Lakshmipathi and Another vs S. Ramalingam

M. Karpagavinayagam, J.—Mr. R. Lakshmipathi and Mr. R. Raghavan, the petitioners herein, the Publisher and Printer of ""DINAMALAR

Tamil daily, arc, the accused in C.C. No. 192 of 1994 on the file of Judicial Magistrate-II,Coimbatore, which was taken on file u/s 228-A, I.P.C.

for having printed and published in their newspaper dated 4-7-1994, disclosing the identity of the victim in the rape case which occurred on 27-6-

1994.

Mr. Ramalingam, the complainant, the respondent herein, filed the above said private complaint against the petitioners being publisher and

printer and two others, the Editor and Manager of ""Dinamalar"" Tamil daily. After recording sworn statement, the learned Judicial Magistrate took

cognizance for the offence u/s 228-A, I.P.C. in respect of the petitioners, namely, A-1 and A-3 alone. On the process being issued, the petitioners

received the same and approached this Court challenging the issue of process, in this Revision.

Mr. Panchapagesan, the counsel appearing for the petitioners, while challenging the order issuing the process on the petitioners, would mainly

press into service the following contentions :--

(i) The institution of the present proceedings against the petitioners is absolutely illegal, in as much us the petitioners arc completely protected from

the prosecution u/s 228-A(2)(c), I.P.C, since they were authorised for such publication disclosing the identity of the victim in die rape case by the

Social Service Organisation, as contemplated and exempted by the section itself.

(ii) The present complaint was made by a person who is not competent to file the same, since the whole reading of Section 228-A, I.P.C. with

proviso would clearly imply, on a proper interpretation of the provisions of this section, that any one of the three categories of persons mentioned

in the section alone would be competent to file a complaint, namely, victim or police or recognised social organisation. The complaint is not only

invalid but also vitiated by mala fide.

Mr. Ravichandran, the counsel appearing for the respondent, on the other hand, would submit that the above contentions are not valid in law, as

the petitioners arc not protected under any exemption, that there is no bar for institution of the prosecution as the section does not provide for the

eligibility of a person who would file a complaint and that therefore, the process issued on the institution of the complaint is perfectly in order.

Before adverting to the merits of the contentions made by either side, it would be appropriate to mention the facts in brief, which would be

useful for the disposal of this revision.

The complainant was appointed as a Reporter in Dinamalar at Erode in 1988. Thereafter, he was transferred to Coimbatore. He worked for the

welfare and improvement of the Tamil daily ""Dinamalar"". On 27-8-1993 he was dismissed from service. Challenging the order of dismissal, he filed

two cases before the Labour Court and the same are pending. Apart from these two cases, he had also filed a private complaint earlier against

Dinamalar"" people before Judicial Magistrate-VII of Coimbatore for the offences Under Sections 395, 109, 447 and 500 of I.P.C. In this case,

Section 202, Cr P C. enquiry is pending.

On 4-7-1995 at 7.30 a.m. the complainant, the resident of Coimbatore went and purchased Dinamalar paper at Gandhipuram. He saw a news

item in which it was mentioned that one Muthulakshmi was raped by some youth and they were arrested by the police. Disclosure of the identity of

the victim of rape in a newspaper is a cognizable offence.

On 18-7-1994, in order to give a reasonable opportunity for explanation by Dinamalar people, he sent a lawyer notice indicating the

commission of offence referred to above, to the petitioners and two other accused. On 30-7-1994 the accused sent a reply through their lawyer

stating that they have been authorised to publish the name of the victim in their paper by one Social Action Coordination Tamilnadu Theological

Seminari, Madurai, the recognised social welfare institution and as such, they are protected from the prosecution u/s 228-A(2)(c), I.P.C.

On receipt of the reply notice, the complainant went to Krishnapuram village and enquired the victim and her people and the said enquiry did not

reveal that any such complaint was made to any welfare institution.

Under these circumstances, the complainant filed the complaint on 12-9-1994 before the learned Judicial Magistrate, Coimbatore against 4

persons. On 14-9-1994 the sworn statements were recorded from the complainant and one Kannan. Thereafter, the complaint was taken on file

holding that there is sufficient ground for proceeding as against the petitioners (A-1 and A-3) alone and process was issued to them.

Mr. Ravichandran, the counsel for the respondent, while resisting the submissions made by the counsel for the petitioners, raised a preliminary

objection with reference to the maintainability of this revision. According to him, Section 397(2), Cr P.C. provides that the powers of the revision

conferred under this section shall not be exercised in relation to any interlocutory order and the process issued in the instant ease being an

interlocutory order cannot be questioned in the revision.

It is true that in some of the decisions rendered by this Court as well as the other High Courts, it is held that the process issued is an

interlocutory order and the same cannot be revised in the revisional jurisdiction. But, the Apex Court in A.K. Subbaiah and Others Vs. State of

Karnataka and Others, held that it is maintainable with the following observation :-

It is therefore clear that when the issue of process is challenged in the revision petition before the High Court what the High Court is expected to

see is as to whether the complaint and the papers accompanying the complaint prima facie indicate that an offence is made out. If so, the Court

below was right in issuing process against the accused persons and such proceedings cannot be quashed; if the complaint and the papers

accompanying the complaint, in the opinion of the High Court are such which do not prima facie disclose an offence then it will be open to the High

Court to entertain the revision and quash the proceedings.

In the light of the above observation, I am unable to uphold the preliminary objection raised by the counsel for the respondent. Consequently. I

am of the view that this revision as against the order of issue of process is maintainable, more particularly when it is contended that without prima

facie case, the case was taken on file by the learned Judicial Magistrate.

It is a well laid principle that in coming to a decision as to whether a process should be issued, the learned Judicial Magistrate can take into

consideration the inherent improbabilities appearing on the face of the complaint, but there is a thin line of demarcation between a probability of a

conviction and establishment of a prima facie case against the accused. The learned Magistrate has been given an undoubted discretion in the

matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his judicial discretion, it is true, it is not for this

Court in this revision to substitute its own discretion for that of the Magistrate or to examine the case on merits in order to find out whether the

allegations in the complaint would ultimately end in conviction.

Before directing any issue of process against an accused, the Magistrate is called upon to apply his judicial mind to the materials on record for

the purpose of ascertaining whether there is sufficient grounds for proceeding further with the complaint. The words ''sufficient grounds'' mean, the

satisfaction of the Magistrate that a prima facie case has been made out against the accused. In other words, at the stage of issuing process, the

Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the relevant facts and

circumstances should be considered and process should not be mechanically issued on the basis of the complaint.

The Apex Court in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , while dealing with an order of the Magistrate issuing

process against the accused would give the following categories of cases where the order issuing process can be set aside by the High Court

invoking revisional jurisdiction at page 1537 (of Cri LJ) :-

(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make

out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the

accused ;

(2) where the allegations made in the complaint are potently absurd and inherently improbable so that no prudent person can ever reach a

conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or no

materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority

and the like.

Applying these principles to the facts of the present case, it has to be seen whether any case has been made out to invoke the revisional

jurisdiction to set aside the order issuing process.

Let us now take the first contention urged by the learned counsel for the petitioners.

In elaboration of this contention, the learned counsel for the petitioners would submit that the offence u/s 228-A, I.P.C. is not made out against

the petitioners, as they come under exception 228-A(2)(c).

While adverting to this point, we shall now refer to the relevant section and proviso :

228A. Disclosure of identity of the victim of certain offences, etc.- (1) Whoever prints or publishes the name or any matter which may make

known the identity of any person against whom an offence u/s 376, Section, 376A, Section 376B, Section 376C or Section 376D is alleged or

found to have been committed (hereinafter in this section referred to as the victim) shall be punished with imprisonment of either description for a

term which may extend to two years and shall also be liable to fine.

(2) Nothing in Sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if

such printing or publication is-

(a) by or under the order in writing of the officer incharge of the police station or the police officer making the investigation into such offence acting

in good faith for the purposes of such investigation; or

(b) by, or with the authorisation in writing of, the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim :

Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called,

of any recognised welfare institution or organisation.

Explanation.- For the purposes of this Sub-section, ""recognised welfare institution or organisation"" means a social welfare institution or organisation

recognised in this behalf by the Central or State Government.

(3)....

A plain reading of this section and sub sections with proviso would clearly reveal that the printing or publication of the identity of the victim of

rape would not attract the offence u/s 228A, if the said publication was made at the instance of any recognised welfare institution or organisation.

Bearing the meaning of this section in mind, let us now go into the complaint and the sworn statement recorded from the complainant.

According to the complainant, on seeing the news item disclosing the identity of the victim in the rape case, the complainant gave a lawyer

notice to the accused. In reply to the said notice, the accused stated that they published the identity of the victim in Dinamalar daily only on the

written request made by a recognised social welfare institution. ""Social Action Co-ordination Tamilnadu Theological Seminari of Madurai"" to

whom the matter was complained by the affected and competent person and as such, they were duly protected by the proviso to Section 228-A

of I.P.C. The notice sent by the complainant through lawyer and reply notice sent by the accused through lawyer have been referred to in the

complaint and those documents have also been filed along with the complaint. As such, these documents are from part of the records before the

Court.

However, in the complaint it is stated that the enquiry did not reveal any such complaint was made to the welfare institution. In the sworn

statement it is stated that the complainant went to the village of the affected party and he was informed that the affected party were not able to get

any relief from Dinamalar Tamil daily.

It is to be noticed in this context that it is not alleged either in the complaint or in the sworn statement that he went and enquired the welfare-

institution as to whether any such authorisation was obtained from the affected party or any written request was made to the Tamil daily requesting

for relief.

It is admitted in the sworn statement that the affected party informed the complainant that they have not yet obtained any relief from Dinamalar

Daily. This itself would indicate that they have approached Dinamalar daily through welfare institution. What ever it is, unless there is a specific

averment in the complaint, on the basis of some materials that Dinamalar daily has not received any written request from the recognised welfare

institution or the said welfare institution has not received any authorisation from the affected party, it cannot be said that the allegations contained in

the complaint merely referring to the section would make out a prima facie case to hold that here is sufficient ground for proceeding. In other

words, the reading of the complaint and the documents such as sworn statement, notice and reply accompanied the complaint would go to show

that they do not disclose the essential ingredients of the offence u/s 228-A. I.P.C. which is alleged against the accused.

There are three essentials to be proved to make out a prima facie case for the offence u/s 228-A, I.P.C. They are (1) the accused has printed

or published the name disclosing the identity of the victim of rape; (2) such allegation or offence was under investigation or trial; (3) no order,

authorisation or permission required under Sub-section (2) was obtained by such accused prior to such printing or publication.

Though the first two ingredients are there in the complaint and other accompanied documents, the absence of the positive averment regarding

the third essential, particularly when the reply notice filed by the complainant along with complaint would clearly show that they obtained

authorisation, would make the complaint invalid. In my view, this case squarely comes under the first category of the cases as indicated by the

Apex court in Nagawwa case (supra), where the High Court could set aside the order issuing process in revision. According to this first category,

the order of process can be set aside, if the allegations in the complaint and the sworn statement of the witnesses in support of the same make out

absolutely no case against the accused or if the complaint does not disclose the essential ingredients of the offence alleged.

The complainant stated in the complaint that on seeing the news item on 4-7-1994, he chose to send the lawyer notice only on 18-7-1994 to

the accused in order to give an opportunity to the accused to explain their position and in order to know whether such a publication was made with

the consent of the affected party.

As stated earlier, the accused, on 30-7-1994 sent a reply stating that they obtained authorisation from the recognised social welfare institution

by giving details of the names and places etc. Having received this reply, the complainant could have approached the said social welfare institution

for the purpose of verifying the genuineness of the particulars given in the reply notice. Admittedly, this is not done. But, it is stated that he went and

enquired in the village of the affected party and came to know that Dimnamalar did not get the required relief for the affected party.

Whether newspaper has given the relief to Use affected party or is not the question here. The relevant question in this case is whether welfare

institution on authorisation made a request to the Dinamalai to publish the news in the paper with the name of victim.

The answer for this question has not been given in the complaint nor in the sworn statement.

On the other hand, one of the documents, namely, reply notice filed along with the complaint would dearly show that publication was made only

with the written request on authorisation by the welfare institution by which the accused are exempted from prosecution u/s 228(A)(2)(c), I.P.C.

In view of the above discussion, the first point is answered accordingly in favour of the petitioners.

With regard to the second contention, the counsel for the petitioner would argue that the complaint u/s 228-A, I.P.C. could be filed only by

any one of the three categories of persons and the complainant will not come under any one of them and as such, the complaint is not valid.

As laid down by the Apex Court in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , the fourth category of case, namely,

absence of a complaint by a legally competent person would also empower this Court to invoke revisional jurisdiction to set aside the order of

process.

Now, we have to see, in the light of the argument advanced by the learned counsel for the petitioners, whether the complainant is not a legally

competent person?

In the process of answering this question, if is useful to reiterate Sub-section (2) of Section 228-A. Under this provision, the printing or

publication can be done in any newspaper disclosing the identity of the victim either under the order of the police officer in good faith or with the

authorisation of the victim or if the victim is a minor, with the authorisation given by the next of kin of the victim to any recognised welfare

institution. By virtue of the section, it is stated that these three persons who are competent to give authorisation alone, would be the competent

persons to file the complaint against the concerned to have published the name of the victim without their authorisation.

The whole reading of the section, in my view, would refer only about the eligibility of the persons who can give authorisation or permission to

make a publication, it does not provide the eligibility of the persons who could file the complaint. In fact, there are so many other sections found

available in the Code of Criminal Procedure which provide for the eligibility of the persons who alone can launch prosecution against the accused.

Some of the Sections arc 195, 198, Cr.P.C. etc. This provision, namley Section 228-A(2) cannot be construed to be the analogous of the same.

So, in the absence of any specific prohibition for filing complaint by the persons other than the eligible, this Court cannot hold that in the present

case, the complainant is not a legally competent peron who filed the above complaint.

It may be stated that in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, , the Apex Court observed that ""Locus Standi of the

complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of

the complainant, by necessary implication the general principle gets excluded by such statutory provision.

Therefore, the general principle is that any body can set the law in motion in order to bring to the notice of the Court the offence committed by

the person concerned.

According to Section 2(d) of Cr.P.C. the ""complaint"" means any allegation made orally or in writing to a Magistrate, with a view to his taking

action under this Code, that some person, whether known or unknown, has committed an offence. Therefore, any person as a public interest

litigant can approach the Court to file the complaint against: the person requesting for taking action for the offence commited by him under the

Code of Criminal Procedure. So, this definition section also makes it clear that unelss there is a specific prohibition, locus stand of the complainant

cannot be questioned.

Of late, in Indian Legal System, there is a tremendous development and dynamic progress in the public interest litigation. It may, therefore, be

taken as"" well established that where a legal wrong or legal injury is caused to a person and such person is by reason of proverty, helplessness or

disability unable to approach the Court for relief, any member of the public can maintain a complaint for an appropriate action. But, it must be

made clear that the person who moves the Court for judicial redress in a case of crime must be acting bonafide with a view to vindicating the cause

of justice. If he is acting for personal gain or private profit or other oblique consideration, the Court should not allow itself to be activised at the

instance of such person. In other words, the Court should not allow its process to be abused by the persons to harass other persons out of"" private

vendetta.

The Apex Court in Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, , would observe thus at page 1134 AIR

:-

Today public spirited litigants rush to courts to file cases in profusion under this attractive name (P.I.L.). They must inspire confidence in Courts

and among the public. They must be above suspicion. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters

for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional

litigation will suffer.

Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grude and enmity. It is the duty of the

Court to discourage such petitions and to ensure that the course of justice is no! obstructed or polluted by unscrupulous litigants by invoking the

extraordinary jurisdiction of the Court for personal matters under the garb of the public interest litigation. Only a person acting bonafide and having

sufficient interest in the proceeding of public interest litigation will alone have locus stand and can approach the Court to wipe out the tears of the

poor and needy, suffering from violation of the statute, but not a person for personal gain or private profit or any oblique consideration.

The true public interest litigation is one in which a selfless citizen having no personal motive of any kind except either compassion for the weak

and disabled or deep concern for stopping serious public injury approaches the Court.

In ihe light of the guidelines stated above, as propounded by this Court as well as the Apex Court, let us now see whether this complaint as a

public interest litigation has been launched by the complainant bonafide.

The complainant states in para 5 of the complaint that as a citizen of India, he wanted to set the law in motion. He would also state in para 9

that he does not have any faith with police and he has got faith only in the judicial forum. But, we are not concerned with ""conduct certificate'' of

the complainant in favour of judicial forum. On the other hand, we arc called upon to decide the quetion as to whether the complainant as a public

interest litigant has come to the Court bonafide or not, in the context of the submission by the learned counsel for the petitioners that complaint is

vitiated by mala fide.

To decide the above question, the following sentences in the complaint and sworn statement, are quite relevant to be taken note of :

(i) The complainant was appointed as a reporter in Dinamalar in the year 1988. Thereafter, he was transferred to Coimbatore....He does not have

any faith in the police since his personal complaints against the Dinamalar paper were not looked into by the police authorities.... Already this

complainant has prosecuted the Dinamalar people before J.M.VII of Coimbatore for the offence u/s 395, 109, 447 and 500 of I.P.C. It is pending

u/s 202 of Cr.P.C. enquiry.

(ii) Vernacular mailer is omitted

These wordings in the complaint and the sworn statement would certainly show that he is a dismissed employee and he filed several cases both

in the Labour Court and Criminal Court against the Dinamalar people including the petitioners.

As indicated earlier, the public interest litigation could be entertained only when the complainant has got interest for the victim to wipe out her

tears. Admittedly in this case, it is not mentioned in the complaint that he approached the Court as a selfless citizen having no personal motive of

any kind except on compassion for the weak and deep concern for the victim for stopping the serious public injury caused to her. On the other

hand, as mentioned earlier, there is a prolonged enmity between the complainant and the petitioners. It is also made clear that all the litigations

initiated by him against the petitioners in the Labour Court and the Criminal Court on the personal grievances are still pending.

In the light of the above situation, it cannot at all be said that the complainant has approached the Court acting bonafide.

But, I do not propose to take this ground to hold that the complaint was not validly instituted, especially when I expressed my view in the

earlier paragraphs that the statute through Section 228(A)(2), I.P.C. does not prescribe any eligibility of the person who is competent to file the

complaint.

However, in view of my considered opinion on the first point urged by the learned counsel for the petitioners stating that no offence was made

out in the averments made in the complaint, is a valid one, I hold that the order issuing process as against the petitioners is invalid and the same is

liable to to be set aside and accordingly it is set aside.

In the result, the revision petition is allowed. Consequently, no further order is necessary in Crl. M.P. No. 337 of 1995.

Before parting with this case, I must make a mention of this aspect. The complainant, a dismissed employee of Dinamalar Tamil daily, feeling

aggrieved at the hands of the Management, instead of pursuing his proceeding in the Labour Court, has virtually used the Court of Criminal

jurisdiction to ventilate his grievance.

In the words of Justice P.B. Sawant, the Chairman Press Council of India, ""the Press acts as a tribune to ventilate the grievances of the people

and to bring them to the notice of the authorities concerned."" But, irony in the instant case is that the complainant, the press employee himself, in

order to ventilate the grievance, has come to the Tribunal through this criminal complaint, against the Press.

The role of the press assumes very importance, that too, at the present juncture. In a democracy, where the people are the masters and have

to take decisions, the press has to play a significant role. The press moulds the minds and opinions of the people to such an extent that it has come

to be regarded as the Fourth estate of the State in other words, the Press, acts as a watchdog on behalf of the society and to expose the misdeeds

of the administrators. The press has to play its role as a mass educator, a moral leader and as a nation builder. The Press, as a Judge of the

conduct of others and preceptor of the society should be a standard setter for others. It may as a mirror of the society reflect and expose the evils

and malpractices, but it cannot follow them. On the other hand, it has to take steps to eliminate them. A vast reservoir of constructive social power

exists in the press.

In the light of the above principles regarding the role. of the press, I would rather say that Dinamalar Tamil daily, which is known for name and

fame, should be confined to act as a tribune to ventilate the grievance of the people and to bring them to the notice of the authorities concerned,

instead of allowing his former employee to go with some grievance, that too before the Criminal Court. The wise thing is to purchase peace. That

alone would enable the press to effectively play its role.