HT Media Ltd. vs K.T.S. Sarao and Another

V.K. Shali, J.—This is a petition filed by the petitioner u/s 482 Cr.P.C. for quashing of the criminal complaint bearing No. 1578/2001 titled

Prof.K.T.S. Sarao vs. Ms. Bai Ai Lian & Ors., as well as a prayer for quashing of order dated 07.12.2009 passed by the learned Magistrate,

summoning the petitioner as an accused in the case. Briefly stated the facts leading to the filing of the present petition are that the respondent herein

filed a complaint against Ms. Bai Ai Lian and four others, namely, Ms. Vanita Chitkara (Reporter), Mr. Kamlesh Singh (Editor), Mr. Sameer

Kapoor (Publisher) and M/s H.T. Media Ltd. (Printer).

The allegations made in the complaint were that the respondent/complainant was working as a professor at University of Delhi and had an

impeccable reputation and high status in the society. On account of his aforesaid stature, he had commanded immense respect amongst his

superiors, colleagues, subordinates, relatives and friends etc.

It is alleged that accused No. 1/Ms. Bai Ai Lian is the resident of China and Phd. Scholar in the Department of Buddhist Studies. Somewhere

around on 29.7.2002, she is alleged to have made false accusation of sexual harassment against the complainant/respondent being the Head of the

Department of Buddhist Studies.

It is alleged that, thereafter, letters dated 11.9.2002 and 19.9.2002 were written by the accused and she had sought an apology and withdrawal

of the complaint that was purported to have been made by her against the complainant. In the meantime, the Vice Chancellor of University of Delhi

had constituted an Enquiry Committee, which submitted its report on 29.9.2002, concluding that ""there is not enough evidence to substantiate the

charges of sexual harassment beyond reasonable doubt"" and accordingly directed the closure of the enquiry.

It is alleged that accused nos. 2 to 5, as detailed herein above, are jointly and severally responsible for having indulged in reporting, editing,

publishing, printing and circulating amongst the general public a defamatory article against the respondent/complainant through their newspaper

titled ""MetroNow"" dated 19.11.2007. It was distributed in and around University of Delhi under the heading ""Chinese Girl''s DU Torture"". This

report is stated to have appeared on the front page, i.e. page No. 1 as well as on page No. 2 under the heading "" I Respected Him.....Like God"".

It resulted in filing of a complaint against all the five persons, out of whom the present petition has been preferred only by accused No. 5 - M/s HT

Media Ltd. It is alleged to have printed a defamatory news report and therefore, it was accused of an offence under Sections

499/500/502/34/120B IPC. The complaint contained the alleged defamatory article along with the complete documents like letter dated

19.9.2002 tendering apology and withdrawal of the complaint dated 29.9.2002 issued by the Registrar of University of Delhi. The relevant pages

of the newspaper report, legal noticed dated 19.12.2007 and 06.3.2008 purported to have been issued by the respondent were annexed as

Annexure P-6 to the present petition.

The respondent/complainant examined himself as CW1 and proved the aforesaid documents as Exhibit CW1/A to H. In his statement, the

respondent/complainant, Prof. K.T.S. Sarao supported the averments made in the complaint. In addition to his own testimony, the

respondent/complainant also examined two more witnesses, CW2 - Dr. Arvind Kumar Singh and CW3 - Dr. Sanjay Kumar Singh, who have

stated that they have read the newspaper report appearing in ""MetroNow"" on 19.11.2007, which according to them was false and defamatory in

nature. It is further stated by them that because of this report the image of Prof. K.T.S. Sarao has got lowered in their estimation.

Learned Metropolitan Magistrate after recording the statement of the respondent/complainant in terms of Section 200 and holding an inquiry u/s

202 Cr.P.C, passed an order that ""prima facie there were sufficient grounds against the accused persons for being summoned for an offence under

Sections 499/500/501/502/34/121B IPC and accordingly, summoned all the accused persons including the present petitioner on 28.1.2011.

The present petitioner has filed the petition for quashing of the complaint as well as the order of summoning without first putting an appearance

before the Learned Metropolitan Magistrate.

The contention of learned counsel for the petitioner is that the learned M.M has not taken into account the declaration purported to have been

filed by the publisher of the newspaper with the District Magistrate, Noida, Gautam Budh Nagar wherein it has been stated as under:

Volume No. 1, Issue No. 243 Regd. No. DELENG/2007/19391, Published for the Metropolitan Media Company Pvt. Ltd, by Sameer Kapoor

at Express Building, 9-10 Bahadur Shah Zafar Marg, New Delhi 110002 and printed by him at HT Media Limited B-2, Sector 63, Noida

201307, Email: feedback@metronow.co.in; Editor:Kamlesh Singh. Reproduction in whole or in part without the written permission of the

Publisher is prohibited.

Learned counsel for the petitioner has also in this regard referred to few paragraphs of the judgments in Sunilakhya Chowdhury Vs. H.M.

Jadwet and Another, , Bilal Ahmed Kaloo Vs. State of Andhra Pradesh, and Haji C.H. Mohammad Koya Vs. T.K.S.M.A. Muthukoya,

The second submission made by learned counsel for the petitioner is that present petitioner could not have been made liable for the offence of

defamation much less, he could have been summoned as there was absence of mens rea with regard to this. Learned counsel for the petitioner has

relied upon the case titled Harshendra Kumar D. Vs. Rebatilata Koley Etc., in order to contend that the Court in exercise of its power under

Sections 482 and 397 Cr.P.C can take cognizance of public documents and quash the complaint.

I have carefully considered the submissions made by the learned counsel for the petitioner. I have also gone through the judgments which have

been relied upon by the learned counsel. Suffice it would be to mention that this is common practice for the counsel to refer to judgments without

taking note of the fact that the Apex Court has been consistently saying that while dealing with the ratio laid down by the Apex Court in a particular

case, the same should not be applied like theorems and the Court must examine the facts in the context in which the law is laid down and also

relate it to the facts in hand where the law is sought to be relied. Reliance in this regard can be placed on Haryana Financial Corporation and

Another Vs. Jagdamba Oil Mills and Another, Another judgment which may be pertinent to refer herein is Sushil Suri Vs. C.B.I. and Another,

where the Apex Court has categorically observed that even a change of one vital or material fact can result in different application of law.

On the basis of the aforesaid, in my considered opinion the judgments which have been referred by the learned counsel for the petitioner are

not at all applicable to the facts of the present case.

So far as the judgments Mohd. Koya (supra) and Bilal Ahmed Kaloo (supra) are concerned, these are two judgments where the matter has

reached the Apex Court after the parties had adduced their respective evidence and the merits of the case have been gone into by the courts

below, while as in the instant case, the only thing which has been done is that learned MM prima facie, after recording of the pre-summoning

evidence has come to the conclusion that it is a case where there is sufficient evidence on record to proceed against the present petitioner.

Therefore, the quantum of proof which is required at the time of final adjudication of the matter while deciding the guilt of the accused is much

higher as compared to the quantum which is required at the time of summoning. There should be only prima facie evidence, sufficient to proceed

against the accused persons. Accordingly, both these judgments in my view are not applicable to the facts of the present case.

So far as the case of Sunlakhya Chowdhury (supra) is concerned, that was a case where a revision has been preferred and admittedly the

parameters of revision are different than the parameters of exercise of power u/s 482 Cr.P.C. The Supreme Court in the case titled State of

Haryana vs. Bhajan Lal 1992 Supp.(1) SCC 335 has clearly earmarked the powers of quashing a complaint or an FIR and given seven illustrative

contingencies in which the said power should be exercised and yet given a note of caution that it has to be done only sparingly and not as a matter

of course. In the instant case, Sections for which the petitioner has been summoned are essentially of defamation. At the time of summoning, the

learned Magistrate is not required to conduct a minute analysis of the evidence produced by the complainant. All that is required to be seen is

whether the learned Magistrate has applied his mind and found sufficient reason to proceed against the accused persons. In the instant case, the

petitioner has recorded the statement of the complainant/respondent as CW-1. Apart from this, the statement of Dr.Sanjay Kumar Singh, CW-3,

Dr.Arvind Kumar Singh CW-2 and Mr.Ajit Nair, Advocate have been recorded. If one goes through the statement of CW-2 and CW-3 they

have categorically stated that because this reporting of sexual harassment by the complainant/respondent of the Chinese student, the image of the

complainant/respondent has been lowered in their estimation. This precisely is the crux of the offence of defamation.

The plea taken by the petitioner that there is an agreement by virtue of which it only does job work or does not print or publish that paper

essentially constitutes their defence which they have to prove during the course of trial. They cannot be permitted to file a series of documents in

the High Court, which do not form a part of the trial Court record and pray for quashing. This is prohibited by Supreme Court in case titled State

of Bihar and Another Vs. P.P. Sharma, IAS and Another, as well as in case titled State of Orissa Vs. Debendra Nath Padhi AIR 2005 359. Only

such of the documents as form part of the Trial Court record can be the basis for considering the case for quashing of the complaint or the

summoning order. In view of the aforesaid reasons, I am of the considered view that the pleas which have been raised by the learned counsel for

the petitioner for quashing of the complaint or the summoning order are essentially constituting his defence which cannot be a ground or basis for

quashing of the complaint. Accordingly, the petition is dismissed with a cost of Rs. 10,000/-.