Radhanath Rath and Another vs Sub-divisional Judicial Magistrate and Another

R.N. Misra, J.—Petitioner No. 1, the Editor, and Petitioner No. 2, the Printer and Publisher of a daily newspaper ''The Samaj'' published from Cut tack have asked for quashing the cognizance taken by the learned Sub-divisional Judicial Magistrate of Cuttack for offences punishable under Sections 501 and 502 of the Indian Penal Code (hereinafter referred to as ''the Code'' against them. The Criminal Revision is also for the self-same relief. The writ application has been filed to overcome the objection of maintainability of the revision in view of the fact that the impugned order is not a final one and, therefore, may not be amenable to the revisional jurisdiction of the Court in view of the provisions of Section 397(2) of the Code of Criminal Procedure of 1973.

The facts of the case may now be briefly stated. Opposite party No. 2 was a member of the Indian Police Service and was placed in the Orissa Cadre. An order by the Ministry of Home Affairs dated 3rd of October, 1974, was issued to the following effect:

Whereas you, J.M. Samal being a member of the Indian Police Service, hold your office during the pleasure of the President;

And whereas the President, after considering all the facts, relevant materials and circumstances of your case, is satisfied under Sub-clause (c) of the proviso to Clause (2) of Article 311 of the Constitution, read with Rule 14 of the All India Service (Discipline and Appeal) Rules, 1969 that in the interest of the security of the State it is not expedient to hold, in relation to you, such enquiry as is referred to in Clause (2) of the said Article 311 of the Constitution;

And whereas the President, after considering all the facts, relevant materials and circumstances of your case is satisfied that you are unfit to be retained in the public service and ought to be removed from such service;

Now, therefore, the President is pleased to remove you from service with effect from the date of the service of the order.

By order and in the name of the President of India,

Sd/

(C.G. Somiah)

Joint Secretary to the Govt. of India.

After the aforesaid order was published, a news items appeared in the daily ''Samaj'' dated 10th of October, 1974, whereof the headline read thus (as translated into English):

One S.P. of Orissa dismissed. The President dismisses him in terms of Article 311(c).

Allegation of service indiscipline" and below these lines, was noted the fact that news came from the newspaper''s own representative. At two places in the news, reference was made to dismissal and at the end it was stated that the officer had been removed from service.

A complaint was lodged on October 11, 1974, before the learned Sub-Divisional Judicial Magistrate, alleging commission of the offences punishable under Sections 501 and 502 of the Code by the two Petitioners and the news representative - name not known - at the daily paper. The learned Sub-divisional Judicial Magistrate passed the following order on 14- 10-1974:

Seen the copy of the order of the President. It reads:

The President is pleased to remove you from the service with effect from the date of service of this order.

So it is apparent that it is not a case of dismissal from service. A person dismissed from Government service is debarred from any future employment in Government service, while a person removed from a service is not so debarred. Thus, dismissal is the outcome of serious charges while removal may not be so. Although the President is empowered to dismiss a man or remove him, in the present case he has not dismissed the complainant but he has removed from his service.

I have perused the news item in the daily ''Samaj''. It has repeatedly mentioned that the complainant was dismissed from service. When the complainant, in fact, was not dismissed from service it can reasonably be said that there is a prima facie case that such publication harms the reputation of the complainant. I, therefore, take cognizance under Sections 501 and 502, Indian Penal Code. The complainant is to file requisites by 17-10-1974 for issue of summons to the accused persons.

It may be stated as a fact that in the daily ''Samaj'' on 19-10-1974, an errata appeared wherein it was indicated that the earlier report of 10th October saying that the opposite party No. 2 had been dismissed from service was a mistake and it was, in fact, a case of removal. Therein it had been further indicated that in the news item ''dismissal" had been stated without any motive or intention not maintaining the distinction between the two words.

Notice was issued to the opposite parties and this case was taken up for hearing on 22-12-1976. As the opposite party No. 2 had not entered appearance and the record did not clearly indicate whether he had been served, we thought it appropriate to issue fresh notice to him. He has now been served personally on 3rd of January, 1977, and has not chosen not to appear.

Mr. Rath for the Petitioners contends that there was absolutely no basis for taking cognizance as ordered by the learned Subdivisional Judicial Magistrate on 14-10-1974. According to him, there is no distinction between the words ''removal'' and ''dismissal'' in common parlance, though depending upon the consequence that ensues when an officer is dismissed, a distinction" in service law has grown. He relies upon the decision of the Supreme Court in the case of Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., , where Subba Rao, J. as the learned Judge then was, in paragraph 65 of the judgment refers to the meaning of the two words. It has been stated:

.... The dictionary meaning of the word ''dismiss'' is to let go; to relieve from duty''. The word ''remove'' means to discharge, to get rid off, to dismiss....

In ordinary parlance, therefore, removal and dismissal appear to be the equivalent of one another, whereas in view of the consequence that follows when an officer is dismissed, a distinction has developed in the legal sense.

Though certain allegations of bias and prejudice against the Petitioner No. 1 have been made in the petition of complaint, it has not been stated that the impugned publication was the outcome of such bias and/or prejudice. It is true, as has been contended at the Bar, that while considering an application for quashing of the cognizance we have to proceed on the footing that all the allegations in the complaint-petition which, if controverted, the complainant would have opportunity to substantiate, are true. This is so because the complainant does not get an opportunity to establish his case until the trial opens.

The facts of this case are somewhat peculiar. There is no dispute about most of the aspects as the only question for consideration is whether the impugned writing is defamatory and in case it is defamatory, whether the offences punishable under Sections 501 and 502 of the Code can be said to have been committed.

Section 499 of the Code provides:

Whoever by words either spoken or intended to be read or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such impuation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

The fourth Explanation which appears to be material provides:

No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Keeping the definition of defamation together with Explanation 4 in view, and accepting the entire allegations in the petition of complaint together with the impugned writing, can it be said that the writing is defamatory? As already indicated, the only objection in the impugned writing is that while the complainant was removed from service, the news item reported that he had been dismissed. We have already indicated that ''removal'' and ''dismissal'' in common parlance have the same meaning and as indicated in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., , no distinction is maintained between the two words in common speech. In the impugned writing itself, we find that at several places, the complainant has been said to have been dismissed though at the end, it has been reported as a case of removal. Obviously the corRespondent who is said to be the source of the news item maintained no distinction between ''dismissal'' and ''removal'' and made free use of both the words to describe the event.

It is not the complainant''s case that nothing happened and yet intending to harm or knowing or having reason to believe that the writing would harm the reputation of the complainant the news item was published. Basically what has been reported is true except that while the complainant had been removed from service, the news item described the event as one of dismissal. In view of what we have said of the two terms ''removal'' and ''dismissal'', it is difficult for us to accept the stand of the complainant that he has been defamed in any manner. It is not the complainant''s case that the staff corRespondent had not sent the news. There is no allegation of motivated action on the part of the corRespondent at all. In these circumstances, we are of the view that even if the entire allegation in the petition of complaint is accepted, it cannot be said that an offence of defamation is established which would give rise to offences punishable under Sections 501 and 502 of the Code. We are further satisfied that there would be no chance of conviction at an even if the allegations in the petition of complaint are established in their entirety and continuance of the prosecution would be a futile exercise for all concerned and it is in the interests of justice that the prosecution should be quashed. In these circumstances, we direct that the order of the Sub-divisional Judicial Magistrate taking cognizance of offences under Sections 501 and 502 of the Code be quashed.

The writ application is allowed and the impugned order is vacated. The petition of complaint made by the opposite party No. 2 is consequently dismissed. Mr. Rath for the Petitioners does not press the Criminal Revision. The same is accordingly dismissed as not pressed.

K.B. Panda, J.

I agree.