Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: May 3, 2008
th
Date of decision: 4 July, 2008
CRL.M.C. No. 4870-72 of 2006
RAKESH SHARMA & ORS. ….. Petitioners
Through: Mr. M. Dutta, Advocate.
versus
MAHAVIR SINGHVI .....Respondent
Through: Mr.Raj Kumar Sherawat, Advocate.
&
CRL.M.C. No. 5049-50 of 2006
RAKESH SHARMA & ORS. ….. Petitioners
Through: Mr. M. Dutta, Advocate.
versus
MAHAVIR SINGHVI .....Respondent
Through: Mr.Raj Kumar Sherawat,Advocate.
CORAM:
HON'BLE DR. JUSTICE S.MURALIDHAR
JUDGMENT
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
Dr. S. Muralidhar, J .
1. These petitions under Section 482 of the Code of Criminal
Procedure, 1973 („CrPC‟) arising out of the same set of facts raise
similar questions and are therefore being disposed of by this common
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 1 of 13
judgment. Criminal M.C. No. 4870-72 of 2006 seeks the quashing of
Criminal Complaint No. 802/1/2004 titled Mahavir Singhvi v.
Rakesh Sharma pending in the court of the learned Metropolitan
Magistrate („MM‟) Delhi and all proceedings consequent thereto.
Criminal M.C. No. 5049-50 of 2006 seeks the quashing of Criminal
Complaint No. 801/2/2004 titled Mahavir Singhvi v. Rakesh Sharma
pending in the court of the learned MM Delhi and all proceedings
consequent thereto.
2. Petitioner No. 1 is the Publisher of Hindustan Times, New
Delhi. Petitioner No. 2 is its Editor and Petitioner No. 3 its Reporter/
Correspondent. The Respondent was a member of the Indian Foreign
Service („IFS‟) of the 1999 batch. He was appointed as a Probationer
st
by an order dated 21 September, 1999 issued by the Government of
India. On the ground that the Respondent‟s conduct and performance
during the period of the probation was found to be unsatisfactory, the
th
Respondent was discharged from service by an order dated 13 June,
2002.
th
3. In the Delhi edition of Hindustan Times dated 19 June, 2002 a
news item under the heading “IFS probationer sacked after tapes
„prove‟ misconduct” appeared. The news line was under the
authorship of Petitioner No. 3 Saurabh Shukla. Inter alia, the news
item stated:
“Sources say this is the first time an IFS
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 2 of 13
probationer has been sacked for misconduct.
The tapes proved “Mahaveer Singhvi of the
1999 batch, had obnoxious conversation
with a woman.
Apparently, the tapes were heard even by
the then Foreign Minister Jaswant Singh,
who ordered the probationer be immediately
sacked.
According to IFS conduct rules, a
probationer can be sacked without notice.
However, in this case, an inquiry was
conducted by the then Additional Secretary
(Administration) P.L. Goyal initially. But
once the minister passed the order, action
against the officer was instant. Though
Singhvi was due for a posting abroad; the
conversation on the tape, which reportedly
contained “abusive and expletive language”,
was so incriminating, that the extreme action
taken against him was inevitable, Sought
Block sources say.
They add that the sacking has sent a strong
message around the Foreign Officer;
misconduct would not be tolerated.”
4. Simultaneously, in the Hindi newspaper „Hindustan‟ a similar
st
news item appeared in the Delhi edition of 21 July, 2002. The rough
translation of the heading and sub heading of the news item reads as
under:
“ OFFICER MAKES LIFE HELL FOR A LADY
AFTER BEING DENIED MARRIAGE BY HER.
AFTER INTERFERENCE BY A CENTRAL
MINISTER. THE OFFICER WORKING IN THE
MINISTRY OF EXTERNAL AFFAIRS IS
SUSPENDED
.
Inter alia the translated portion of the news
item read:
“According to the information received,
from the last three years the lady Anjali
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 3 of 13
(changed named) is very disturbed. Her
problem started the day she met Mahaveer
in IAS Coaching Academy. Since Mahaveer
was good at studies since beginning, so
Anjali befriended him. Mahaveer passed the
Union Public Service Commission
examination and was selected for Indian
Foreign Service but Anjali could not get
through. She started her work. One day
Mahaveer proposed marriage to her but she
denied. Denial of marriage proved to be so
much costly for her that her life became hell.
Anjali‟s mother became heart-patient.
Brother is disturbed due to threats to her
sister. Anjali herself neither could sleep in
night nor she can work properly.
This suspended officer of Indian Foreign
Service made the life of Anjali such hell that
she could not meet even her family members
and friends. Every minute listening to
abuses on phone became her destiny.
Misusing his Official Post, he collected
information about the lady. The most
surprising thing is that all those who have
helped this officer are all senior administrate
officer. Anjali was harassed sometimes from
the Income-tax department and sometimes
from the home Ministry. At last the lady
complained to the officials of the MTNL
and sought their help for telephone
recording. She recorded all the talks and
made the then External Affairs Minister
listen to it who ordered an enquiry.
After enquiry, the said officer had been
suspended but ever after the suspension,
Mahaveer continues to harass the lady.
Disturbed by her threats, Anjali is expecting
help from someone else also. The most
intriguing thing is that Mahaveer Singhvi
had been a very brilliant student of
Rajasthan Board.”
5. The Respondent challenged the order passed by the
Government of India discharging him from service by filing OA No.
2038 of 2002 before the Central Administrative Tribunal („CAT‟),
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 4 of 13
Principal Bench, New Delhi. In its reply to the said application the
Government of India took the stand that it was a discharge simpliciter
and did not contain any stigma and was in accordance with the terms
and conditions of the Respondent‟s appointment as a Probationer. A
reference was made to the complaint received from Mrs. Narinder
Kaur Chadha alleging that Respondent had been making calls to her
daughter using abusive language.
6. The Respondent filed Civil Suits Nos. 275 and 276 of 2004 in
this Court seeking damages from the Petitioners herein in the sum of
Rs. Five crores alleging that the published news items were
defamatory.
th
7. On 19 July, 2004 the aforementioned two criminal complaints
were filed by the Respondent in the Court of the learned ACMM,
New Delhi under Section 500, 211 and 120-B of the Indian Penal
Code („IPC‟). The Respondent examined himself and six others as
st
witnesses. On 21 March 2006, the learned ACMM after perusing the
statements of the witnesses and the documents came to the conclusion
that there was prima facie sufficient material to proceed against the
accused for the offence under Section 500 IPC of which he, therefore,
took cognizance. Summons were issued to the accused to face trial for
the said offence.
st
8. On 21 August, 2006 the present petitions were filed and by an
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 5 of 13
rd
order dated 23 August, 2006 the criminal proceedings before the trial
court were stayed by this Court.
9. Mr. M. Dutta, the learned counsel appearing for the Petitioners
submitted that the two complaints when read as a whole do not even
prima facie bring out a case against the Petitioners for the offence
under Section 500 IPC. Learned counsel sought to contend that in
light of the Second, Third and Ninth Exceptions under Section 499
IPC, the news items could not be considered to be defamatory. In
other words, the news items constituted an expression in good faith of
an opinion respecting the conduct of a public servant in the discharge
of his public functions, or an expression in good faith “respecting the
conduct of any person touching any public question and respecting his
character so far as his character appears in that conduct” or at best
they were imputations made in good faith “for the protection of the
interest of the person making it, or of any other persons, or for the
public good”. Reliance was placed on the judgments in Pepsi Food
Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749, Jawaharlal
Darda v. Manoharrao Ganpatrao Kapsikar (1998) 4 SCC 112,
Prabhu Chawla v. A.U. Sheriff 1995 Crl.L. J. 1922, N.V. Kumaran
v. State 1995 Crl. L. J. 1928, O.N. Khajuria v. State of Maharashtra
1981 Crl.L.J. 1729, Harbhajan Singh v. State of Punjab AIR 1961
Punjab 215, N. Ram v. Siby Mathew 2000 Crl. L. J. 3118, Sukra
Mahto v. Basdeo Kumar Mahto 1971 (1) SCC 885, Harbhajan
Singh vs. State of Punjab, AIR 1986 SC. 97, Manju Mohanka v.
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 6 of 13
Smt. Renuka Banerjee 1996 Crl. L. J. 4422 and Purushottam Vijay
v. State AIR 1961 MP 205 .
10. On behalf of the Respondent it was submitted by Mr. Rajkumar
Sehrawat, learned counsel that the reading of the complaints as a
whole do bring out a prima facie case against the Petitioners for the
offence under Section 500 IPC. Relying on the judgments in
Maninder Kaur v. Rajinder Singh 1992 SCC (Crl) 522 and Chand
Dhawan v. Jawahar Lal AIR 1992 SC (1) 379 he contended that once
the learned MM had applied his mind after perusing the documents
and examining the pre-summoning evidence in the form of the
complaint‟s witnesses, it cannot be said that the taking of cognizance
and issuing of summons by the learned MM was bad in law. The
High Court ought not to interfere with the criminal proceedings under
Section 482 CrPC. Referring to the judgments in Balraj Khanna v.
Moti Ram 1971 SCC (Crl.) 647 and Sewakram Sobhani v. R.K.
Karanjia (1981) 3 SCC 208 , it is submitted that at the present stage it
is premature to conclude whether the defence of the Petitioners with
reference to the exceptions under Section 499 IPC was made out. This
was a matter for trial and evidence would have to be led to come to a
definitive conclusion. He further submitted that the evidentiary value
of the reply by the Union of India (“UOI‟) to the petition filed by the
Respondent before the CAT would in any event have to be decided
only at the trial. He submitted that the imputation in the news item
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was contrary to the stand of UOI that the order dated 13 June,
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 7 of 13
2002 was a discharge simpliciter and not on account of any
misconduct by the Respondent. He referred to the statement made in
the counter affidavit by the UOI that the complaint lodged by Mrs.
Chadha against the Respondent was not the basis for his discharge
from service.
11. It must be mentioned that during the course of the arguments,
Mr. Dutta referred to another news item titled “Foreign office in a
quandary over probationer‟s sacking”, which appeared in the Delhi
th
edition of Hindustan Times dated August 29 2002. It was sought to
be contended that the subsequent news item acknowledges the
confusion within the Ministry of External Affairs whether the decision
to terminate the services of the Respondent through a discharge was
correct. However, the subsequent news item is not in the form of an
apology to the Respondent and does not in any manner constitute a
retraction of the earlier news item in respect of which the complaints
have been filed.
12. The question which arises for the consideration of this Court is
whether at this stage of the proceedings it can be said that complaints
in question do not even bring out a prima facie case against the
Petitioners for the offence under Section 500 IPC.
th
13. It may be mentioned here that by judgment dated 4 September
2003, the CAT dismissed OA No. 38 of 2002 thus upholding the order
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 8 of 13
th
dated 13 June, 2002 passed by the Government of India discharging
the Petitioner from the service. Against the said order the Petitioner
has filed Civil Writ Petition No. 8091 of 2003 in this Court. In reply
to the said writ petition, the Government of India has taken a stand
similar to the one taken before the CAT. Annexed thereto is letter
th
dated 12 January 2004 written by the Deputy Secretary (FSP &
Cadre) to the Petitioner clarifying as under:
“i. That the Ministry of External Affairs
does not share any information with the
Media about any official action initiated or
contemplated against his officers.
ii. Ministry of External Affairs is not the
source of information in so far as the news
article enclosed to your representation, and
iii. The information sought for, should be
addressed to the newspaper who have
published the same.
14. On a perusal of the two complaints, this Court is unable to
come to the conclusion that not even a prima facie case is made out
against the Petitioners for the offence under Section 500 IPC. The
question is really whether at this stage, without the case going to trial,
the defence of the Petitioners with reference to the exceptions under
Section 499 IPC can be adjudicated upon. The learned ACMM has
perused the pre-summoning evidence of the complainant and come to
the conclusion that a prima facie case has indeed been made out. To
this Court, there appears to be no perversity vitiating this conclusion.
The veracity of the statements made by these witnesses can at best be
tested during the trial through their cross-examination.
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 9 of 13
15. As evident from Sukra Mahto v. Basdeo Kumar Mahto, where
a defence was raised with reference to the ninth exception to Section
499 IPC, the ingredients of that defence can at best be demonstrated
during the course of trial. It must be recalled that the said judgment
was given by the Supreme Court at the post conviction stage when the
entire evidence was available to it. A contention similar to the one
raised by the Petitioners here was rejected by the Supreme Court in
Sewakram Sobhani v. R.K. Karanjia . The Supreme Court reversed
the judgment of the High Court which had, in exercise of its powers
under Section 482 CrPC, quashed the criminal case on the ground that
the publication of the news item in that case fell within the ambit of
the ninth exception to Section 499 IPC. It was held that the High
Court had prejudged the issue and the case ought to have been
allowed to proceed to trial. Reference was made by the High Court to
the first exception to Section 499 IPC and it was held that the
publication of the defamatory news item was for public good.
Repelling this contention, Sen, J, in the Supreme Court held (SCC, p
217):
“The High Court appears to be labouring
under an impression that journalists enjoyed
some kind of special privilege, and have
greater freedom than others to make any
imputations or allegations, sufficient to ruin
the reputation of a citizen. We hasten to add
that journalists are in no better position than
any other person. Even the truth of an
allegation does not permit a justification
under First Exception unless it is proved to
be in the public good. The question whether
or not it was for public good is a question of
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 10 of 13
fact like any other relevant fact in issue. If
they make assertions of facts as opposed to
comments on them, they must either justify
these assertions or, in the limited cases
specified in the Ninth Exception, show that
the attack on the character of another was
for the public good, or that it was made in
good faith: per Vivian Bose, J. in Dr. N.B.
Khare v. M.R. Masani .”
16. In his concurring judgment Justice Chinappa Reddy observed as
under (SCC, p 219):
“Several questions arise for consideration if the
Ninth Exception is to be applied to the facts of the
present case. Was the article published after
exercising due care and attention? Did the author
of the article satisfy himself that there were
reasonable grounds to believe that the imputations
made by him were true? Did he act with
reasonable care and a sense of responsibility and
propriety? Was the article based entirely on the
report of the Deputy Secretary or was there any
other material before the author? What steps did
the author take to satisfy himself about the
authenticity of the report and its contents? Were
the imputations made rashly without any attempt at
verification? Was the imputation the result of any
personal ill will or malice which the author bore
towards the complainant? Was it the result which
the complainant belonged? Was the article merely
intended to malign and scandalize the complainant
or the party to which he belonged? Was the article
intended to expose the rottenness of a jail
administration which permitted free sexual
approaches between male and female detenus?
Was the article intended to expose the despicable
character of persons who were passing off as
saintly leaders? Was the article merely intended to
provide salacious reading material for readers who
had a peculiar taste for scandals? There and several
other questions may arise for consideration,
depending on the stand taken by the accused at the
trial and how the complainant proposes to
demolish the defence. Surely the stage for deciding
these questions has not arrived yet. Answers to
these questions at this stage, even before the plea
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 11 of 13
of the accused is recorded can only be a priori
conclusions. „Good faith‟ and „public good‟ are, as
we said, questions of fact and matters for evidence.
So, the trial must go on.”
17. In Balraj Khanna v. Moti Ram , an order discharging the
accused under Section 202 CrPC for the offence involving Section
500 IPC was reversed by the High Court. It was observed (SCC, p
615):
“10……..At that stage what the Magistrate
has to see is whether there is evidence in
support of the allegations made in the
complaint and not whether the evidence is
sufficient to warrant a conviction. It has
been further pointed out that he function of
the Magistrate holding the preliminary
inquiry is only to be satisfied that a prima
facie case is made out against the accused on
the materials placed before him by the
complainant. Where a prima facie case has
been made out, even though much can be
said on both sides, the committing
Magistrate is bound to commit the accused
for trial and the accused does not come into
the picture at all till the process is issued.
11. The question arises whether in an action
for defamation under Section 500 IPC, it is
necessary that the actual statements
containing the words alleged to have been
used by the accused must be before the
Court or whether it is enough that the
statements alleged to have been made are
substantially reproduced in the complaint.
The further question is whether the
complaint in this case is defective in the
sense that the actual statements alleged to
have been made by the individual accused
have not been stated in the complaint.”
18. As far as the present case is concerned on an application of the
above principles, this Court is of the considered view that a prima
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 12 of 13
facie a case is indeed made out against the Petitioners for the offence
under Section 500 IPC. As observed in Balraj Khanna (SCC, p 217):
“the question of the application of the
Exceptions to Section 499, I.P.C, does not
arise at this stage. Rejection of the
complaint by the Magistrate on the second
ground mentioned above cannot be
sustained. It was also unnecessary for the
High Court to have considered this aspect
and differed from the trial Magistrate. It is
needless to state that the question of
applicability of the Exceptions to Section
499, I.P.C, as well as all other defences that
may be available to the appellants will have
to be gone into during the trial of the
complaint.”
19. Ultimately each case turns on its own facts and circumstances.
On that yardstick, many of the judgments referred to by the learned
counsel for the Petitioners can be understood as having been rendered
on the facts of the particular case before the Court. In the considered
view of this Court, no case has been made out by the Petitioners for
interference at this stage. The petitions are dismissed.
S. MURALIDHAR, J
th
4 July, 2008
sb
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 13 of 13
Reserved on: May 3, 2008
th
Date of decision: 4 July, 2008
CRL.M.C. No. 4870-72 of 2006
RAKESH SHARMA & ORS. ….. Petitioners
Through: Mr. M. Dutta, Advocate.
versus
MAHAVIR SINGHVI .....Respondent
Through: Mr.Raj Kumar Sherawat, Advocate.
&
CRL.M.C. No. 5049-50 of 2006
RAKESH SHARMA & ORS. ….. Petitioners
Through: Mr. M. Dutta, Advocate.
versus
MAHAVIR SINGHVI .....Respondent
Through: Mr.Raj Kumar Sherawat,Advocate.
CORAM:
HON'BLE DR. JUSTICE S.MURALIDHAR
JUDGMENT
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
Dr. S. Muralidhar, J .
1. These petitions under Section 482 of the Code of Criminal
Procedure, 1973 („CrPC‟) arising out of the same set of facts raise
similar questions and are therefore being disposed of by this common
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 1 of 13
judgment. Criminal M.C. No. 4870-72 of 2006 seeks the quashing of
Criminal Complaint No. 802/1/2004 titled Mahavir Singhvi v.
Rakesh Sharma pending in the court of the learned Metropolitan
Magistrate („MM‟) Delhi and all proceedings consequent thereto.
Criminal M.C. No. 5049-50 of 2006 seeks the quashing of Criminal
Complaint No. 801/2/2004 titled Mahavir Singhvi v. Rakesh Sharma
pending in the court of the learned MM Delhi and all proceedings
consequent thereto.
2. Petitioner No. 1 is the Publisher of Hindustan Times, New
Delhi. Petitioner No. 2 is its Editor and Petitioner No. 3 its Reporter/
Correspondent. The Respondent was a member of the Indian Foreign
Service („IFS‟) of the 1999 batch. He was appointed as a Probationer
st
by an order dated 21 September, 1999 issued by the Government of
India. On the ground that the Respondent‟s conduct and performance
during the period of the probation was found to be unsatisfactory, the
th
Respondent was discharged from service by an order dated 13 June,
2002.
th
3. In the Delhi edition of Hindustan Times dated 19 June, 2002 a
news item under the heading “IFS probationer sacked after tapes
„prove‟ misconduct” appeared. The news line was under the
authorship of Petitioner No. 3 Saurabh Shukla. Inter alia, the news
item stated:
“Sources say this is the first time an IFS
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 2 of 13
probationer has been sacked for misconduct.
The tapes proved “Mahaveer Singhvi of the
1999 batch, had obnoxious conversation
with a woman.
Apparently, the tapes were heard even by
the then Foreign Minister Jaswant Singh,
who ordered the probationer be immediately
sacked.
According to IFS conduct rules, a
probationer can be sacked without notice.
However, in this case, an inquiry was
conducted by the then Additional Secretary
(Administration) P.L. Goyal initially. But
once the minister passed the order, action
against the officer was instant. Though
Singhvi was due for a posting abroad; the
conversation on the tape, which reportedly
contained “abusive and expletive language”,
was so incriminating, that the extreme action
taken against him was inevitable, Sought
Block sources say.
They add that the sacking has sent a strong
message around the Foreign Officer;
misconduct would not be tolerated.”
4. Simultaneously, in the Hindi newspaper „Hindustan‟ a similar
st
news item appeared in the Delhi edition of 21 July, 2002. The rough
translation of the heading and sub heading of the news item reads as
under:
“ OFFICER MAKES LIFE HELL FOR A LADY
AFTER BEING DENIED MARRIAGE BY HER.
AFTER INTERFERENCE BY A CENTRAL
MINISTER. THE OFFICER WORKING IN THE
MINISTRY OF EXTERNAL AFFAIRS IS
SUSPENDED
.
Inter alia the translated portion of the news
item read:
“According to the information received,
from the last three years the lady Anjali
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 3 of 13
(changed named) is very disturbed. Her
problem started the day she met Mahaveer
in IAS Coaching Academy. Since Mahaveer
was good at studies since beginning, so
Anjali befriended him. Mahaveer passed the
Union Public Service Commission
examination and was selected for Indian
Foreign Service but Anjali could not get
through. She started her work. One day
Mahaveer proposed marriage to her but she
denied. Denial of marriage proved to be so
much costly for her that her life became hell.
Anjali‟s mother became heart-patient.
Brother is disturbed due to threats to her
sister. Anjali herself neither could sleep in
night nor she can work properly.
This suspended officer of Indian Foreign
Service made the life of Anjali such hell that
she could not meet even her family members
and friends. Every minute listening to
abuses on phone became her destiny.
Misusing his Official Post, he collected
information about the lady. The most
surprising thing is that all those who have
helped this officer are all senior administrate
officer. Anjali was harassed sometimes from
the Income-tax department and sometimes
from the home Ministry. At last the lady
complained to the officials of the MTNL
and sought their help for telephone
recording. She recorded all the talks and
made the then External Affairs Minister
listen to it who ordered an enquiry.
After enquiry, the said officer had been
suspended but ever after the suspension,
Mahaveer continues to harass the lady.
Disturbed by her threats, Anjali is expecting
help from someone else also. The most
intriguing thing is that Mahaveer Singhvi
had been a very brilliant student of
Rajasthan Board.”
5. The Respondent challenged the order passed by the
Government of India discharging him from service by filing OA No.
2038 of 2002 before the Central Administrative Tribunal („CAT‟),
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 4 of 13
Principal Bench, New Delhi. In its reply to the said application the
Government of India took the stand that it was a discharge simpliciter
and did not contain any stigma and was in accordance with the terms
and conditions of the Respondent‟s appointment as a Probationer. A
reference was made to the complaint received from Mrs. Narinder
Kaur Chadha alleging that Respondent had been making calls to her
daughter using abusive language.
6. The Respondent filed Civil Suits Nos. 275 and 276 of 2004 in
this Court seeking damages from the Petitioners herein in the sum of
Rs. Five crores alleging that the published news items were
defamatory.
th
7. On 19 July, 2004 the aforementioned two criminal complaints
were filed by the Respondent in the Court of the learned ACMM,
New Delhi under Section 500, 211 and 120-B of the Indian Penal
Code („IPC‟). The Respondent examined himself and six others as
st
witnesses. On 21 March 2006, the learned ACMM after perusing the
statements of the witnesses and the documents came to the conclusion
that there was prima facie sufficient material to proceed against the
accused for the offence under Section 500 IPC of which he, therefore,
took cognizance. Summons were issued to the accused to face trial for
the said offence.
st
8. On 21 August, 2006 the present petitions were filed and by an
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 5 of 13
rd
order dated 23 August, 2006 the criminal proceedings before the trial
court were stayed by this Court.
9. Mr. M. Dutta, the learned counsel appearing for the Petitioners
submitted that the two complaints when read as a whole do not even
prima facie bring out a case against the Petitioners for the offence
under Section 500 IPC. Learned counsel sought to contend that in
light of the Second, Third and Ninth Exceptions under Section 499
IPC, the news items could not be considered to be defamatory. In
other words, the news items constituted an expression in good faith of
an opinion respecting the conduct of a public servant in the discharge
of his public functions, or an expression in good faith “respecting the
conduct of any person touching any public question and respecting his
character so far as his character appears in that conduct” or at best
they were imputations made in good faith “for the protection of the
interest of the person making it, or of any other persons, or for the
public good”. Reliance was placed on the judgments in Pepsi Food
Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749, Jawaharlal
Darda v. Manoharrao Ganpatrao Kapsikar (1998) 4 SCC 112,
Prabhu Chawla v. A.U. Sheriff 1995 Crl.L. J. 1922, N.V. Kumaran
v. State 1995 Crl. L. J. 1928, O.N. Khajuria v. State of Maharashtra
1981 Crl.L.J. 1729, Harbhajan Singh v. State of Punjab AIR 1961
Punjab 215, N. Ram v. Siby Mathew 2000 Crl. L. J. 3118, Sukra
Mahto v. Basdeo Kumar Mahto 1971 (1) SCC 885, Harbhajan
Singh vs. State of Punjab, AIR 1986 SC. 97, Manju Mohanka v.
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 6 of 13
Smt. Renuka Banerjee 1996 Crl. L. J. 4422 and Purushottam Vijay
v. State AIR 1961 MP 205 .
10. On behalf of the Respondent it was submitted by Mr. Rajkumar
Sehrawat, learned counsel that the reading of the complaints as a
whole do bring out a prima facie case against the Petitioners for the
offence under Section 500 IPC. Relying on the judgments in
Maninder Kaur v. Rajinder Singh 1992 SCC (Crl) 522 and Chand
Dhawan v. Jawahar Lal AIR 1992 SC (1) 379 he contended that once
the learned MM had applied his mind after perusing the documents
and examining the pre-summoning evidence in the form of the
complaint‟s witnesses, it cannot be said that the taking of cognizance
and issuing of summons by the learned MM was bad in law. The
High Court ought not to interfere with the criminal proceedings under
Section 482 CrPC. Referring to the judgments in Balraj Khanna v.
Moti Ram 1971 SCC (Crl.) 647 and Sewakram Sobhani v. R.K.
Karanjia (1981) 3 SCC 208 , it is submitted that at the present stage it
is premature to conclude whether the defence of the Petitioners with
reference to the exceptions under Section 499 IPC was made out. This
was a matter for trial and evidence would have to be led to come to a
definitive conclusion. He further submitted that the evidentiary value
of the reply by the Union of India (“UOI‟) to the petition filed by the
Respondent before the CAT would in any event have to be decided
only at the trial. He submitted that the imputation in the news item
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was contrary to the stand of UOI that the order dated 13 June,
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 7 of 13
2002 was a discharge simpliciter and not on account of any
misconduct by the Respondent. He referred to the statement made in
the counter affidavit by the UOI that the complaint lodged by Mrs.
Chadha against the Respondent was not the basis for his discharge
from service.
11. It must be mentioned that during the course of the arguments,
Mr. Dutta referred to another news item titled “Foreign office in a
quandary over probationer‟s sacking”, which appeared in the Delhi
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edition of Hindustan Times dated August 29 2002. It was sought to
be contended that the subsequent news item acknowledges the
confusion within the Ministry of External Affairs whether the decision
to terminate the services of the Respondent through a discharge was
correct. However, the subsequent news item is not in the form of an
apology to the Respondent and does not in any manner constitute a
retraction of the earlier news item in respect of which the complaints
have been filed.
12. The question which arises for the consideration of this Court is
whether at this stage of the proceedings it can be said that complaints
in question do not even bring out a prima facie case against the
Petitioners for the offence under Section 500 IPC.
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13. It may be mentioned here that by judgment dated 4 September
2003, the CAT dismissed OA No. 38 of 2002 thus upholding the order
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 8 of 13
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dated 13 June, 2002 passed by the Government of India discharging
the Petitioner from the service. Against the said order the Petitioner
has filed Civil Writ Petition No. 8091 of 2003 in this Court. In reply
to the said writ petition, the Government of India has taken a stand
similar to the one taken before the CAT. Annexed thereto is letter
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dated 12 January 2004 written by the Deputy Secretary (FSP &
Cadre) to the Petitioner clarifying as under:
“i. That the Ministry of External Affairs
does not share any information with the
Media about any official action initiated or
contemplated against his officers.
ii. Ministry of External Affairs is not the
source of information in so far as the news
article enclosed to your representation, and
iii. The information sought for, should be
addressed to the newspaper who have
published the same.
14. On a perusal of the two complaints, this Court is unable to
come to the conclusion that not even a prima facie case is made out
against the Petitioners for the offence under Section 500 IPC. The
question is really whether at this stage, without the case going to trial,
the defence of the Petitioners with reference to the exceptions under
Section 499 IPC can be adjudicated upon. The learned ACMM has
perused the pre-summoning evidence of the complainant and come to
the conclusion that a prima facie case has indeed been made out. To
this Court, there appears to be no perversity vitiating this conclusion.
The veracity of the statements made by these witnesses can at best be
tested during the trial through their cross-examination.
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 9 of 13
15. As evident from Sukra Mahto v. Basdeo Kumar Mahto, where
a defence was raised with reference to the ninth exception to Section
499 IPC, the ingredients of that defence can at best be demonstrated
during the course of trial. It must be recalled that the said judgment
was given by the Supreme Court at the post conviction stage when the
entire evidence was available to it. A contention similar to the one
raised by the Petitioners here was rejected by the Supreme Court in
Sewakram Sobhani v. R.K. Karanjia . The Supreme Court reversed
the judgment of the High Court which had, in exercise of its powers
under Section 482 CrPC, quashed the criminal case on the ground that
the publication of the news item in that case fell within the ambit of
the ninth exception to Section 499 IPC. It was held that the High
Court had prejudged the issue and the case ought to have been
allowed to proceed to trial. Reference was made by the High Court to
the first exception to Section 499 IPC and it was held that the
publication of the defamatory news item was for public good.
Repelling this contention, Sen, J, in the Supreme Court held (SCC, p
217):
“The High Court appears to be labouring
under an impression that journalists enjoyed
some kind of special privilege, and have
greater freedom than others to make any
imputations or allegations, sufficient to ruin
the reputation of a citizen. We hasten to add
that journalists are in no better position than
any other person. Even the truth of an
allegation does not permit a justification
under First Exception unless it is proved to
be in the public good. The question whether
or not it was for public good is a question of
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 10 of 13
fact like any other relevant fact in issue. If
they make assertions of facts as opposed to
comments on them, they must either justify
these assertions or, in the limited cases
specified in the Ninth Exception, show that
the attack on the character of another was
for the public good, or that it was made in
good faith: per Vivian Bose, J. in Dr. N.B.
Khare v. M.R. Masani .”
16. In his concurring judgment Justice Chinappa Reddy observed as
under (SCC, p 219):
“Several questions arise for consideration if the
Ninth Exception is to be applied to the facts of the
present case. Was the article published after
exercising due care and attention? Did the author
of the article satisfy himself that there were
reasonable grounds to believe that the imputations
made by him were true? Did he act with
reasonable care and a sense of responsibility and
propriety? Was the article based entirely on the
report of the Deputy Secretary or was there any
other material before the author? What steps did
the author take to satisfy himself about the
authenticity of the report and its contents? Were
the imputations made rashly without any attempt at
verification? Was the imputation the result of any
personal ill will or malice which the author bore
towards the complainant? Was it the result which
the complainant belonged? Was the article merely
intended to malign and scandalize the complainant
or the party to which he belonged? Was the article
intended to expose the rottenness of a jail
administration which permitted free sexual
approaches between male and female detenus?
Was the article intended to expose the despicable
character of persons who were passing off as
saintly leaders? Was the article merely intended to
provide salacious reading material for readers who
had a peculiar taste for scandals? There and several
other questions may arise for consideration,
depending on the stand taken by the accused at the
trial and how the complainant proposes to
demolish the defence. Surely the stage for deciding
these questions has not arrived yet. Answers to
these questions at this stage, even before the plea
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 11 of 13
of the accused is recorded can only be a priori
conclusions. „Good faith‟ and „public good‟ are, as
we said, questions of fact and matters for evidence.
So, the trial must go on.”
17. In Balraj Khanna v. Moti Ram , an order discharging the
accused under Section 202 CrPC for the offence involving Section
500 IPC was reversed by the High Court. It was observed (SCC, p
615):
“10……..At that stage what the Magistrate
has to see is whether there is evidence in
support of the allegations made in the
complaint and not whether the evidence is
sufficient to warrant a conviction. It has
been further pointed out that he function of
the Magistrate holding the preliminary
inquiry is only to be satisfied that a prima
facie case is made out against the accused on
the materials placed before him by the
complainant. Where a prima facie case has
been made out, even though much can be
said on both sides, the committing
Magistrate is bound to commit the accused
for trial and the accused does not come into
the picture at all till the process is issued.
11. The question arises whether in an action
for defamation under Section 500 IPC, it is
necessary that the actual statements
containing the words alleged to have been
used by the accused must be before the
Court or whether it is enough that the
statements alleged to have been made are
substantially reproduced in the complaint.
The further question is whether the
complaint in this case is defective in the
sense that the actual statements alleged to
have been made by the individual accused
have not been stated in the complaint.”
18. As far as the present case is concerned on an application of the
above principles, this Court is of the considered view that a prima
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 12 of 13
facie a case is indeed made out against the Petitioners for the offence
under Section 500 IPC. As observed in Balraj Khanna (SCC, p 217):
“the question of the application of the
Exceptions to Section 499, I.P.C, does not
arise at this stage. Rejection of the
complaint by the Magistrate on the second
ground mentioned above cannot be
sustained. It was also unnecessary for the
High Court to have considered this aspect
and differed from the trial Magistrate. It is
needless to state that the question of
applicability of the Exceptions to Section
499, I.P.C, as well as all other defences that
may be available to the appellants will have
to be gone into during the trial of the
complaint.”
19. Ultimately each case turns on its own facts and circumstances.
On that yardstick, many of the judgments referred to by the learned
counsel for the Petitioners can be understood as having been rendered
on the facts of the particular case before the Court. In the considered
view of this Court, no case has been made out by the Petitioners for
interference at this stage. The petitions are dismissed.
S. MURALIDHAR, J
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4 July, 2008
sb
CRL.M.C. Nos.4870-72 & 5049-5067 of 2006 Page 13 of 13