Kalyan Bandyopadhyay vs Mridul De

Sudip Ahluwalia, J.—This Revisional application has been filed with a prayer to quash the proceedings of Complaint Case No. C/23552 of 2009 of the Court of the Ld. Chief Metropolitan Magistrate, Calcutta, as also the Order passed by him on 12.05.2009. By virtue of the said Order, cognizance was taken and issuance of processes U/Ss. 500 /501 of the IPC was directed against the present petitioner, while cognizance in respect of the offences under Sections 109 read with Section 500 of the IPC was taken against the remaining 5 (five) accused persons, being The Calcutta Television Network Pvt. Ltd. and its specified Officers and Reporter.

In para 2 of the application, the petitioner has given an elaborate and rather unwarranted introduction of himself as a sitting member of the Indian Parliament, apart from being a Legal practitioner by profession, and has averred that he is a responsible person committed to the well-being of the people within and outside West Bengal. The obvious logical suggestion would thus be that being in such position of responsibility and in the legal profession, he could not have made any irresponsible, defamatory or derogatory statement(s) to lower the reputation of his rival political party, or any of its members, for which he is now being wrongly prosecuted. It needs to be therefore mentioned at the very outset that the status or professional standing of the petitioner is inconsequential for adjudication upon the merits of his case, although the utterances imputed to him in the complaint could otherwise cast some reflection on a Parliamentarian''s conduct, which might find mention elsewhere in this judgment.

In the original complaint, the Complainant/opposite party had claimed himself to have been a member of the Communist Party of India (Marxist) for many years, apart from having been a member of the State Secretariat and State Committee of the aforesaid political party. He had alleged that the petitioner/accused, who was a candidate of the rival TMC Party for the ensuing 15th Parliamentary Election, had made false, scandalous and defamatory imputations against the CPI(M) party, and its permanent members including the then Chief Minister of the State on the 23rd of April, 2009 at 21.15 Hours, in the course of a Questions and Answers Session Telecast by the Calcutta Television Network. According to the complainant, such imputations were made by the petitioner intentionally, and the same resulted in harming the reputation of the party [CPI (M)] and its members including the complainant. It was further alleged that the Broadcasting Television channel and its authorized Officers/Reporter were hand in glove with the petitioner/accused person No. 1 in the matter of defamation of the CPI (M) party and its leaders through the Question and Answer Session in the programme "Voter Ghanta ". The Complainant/Respondent has however chosen not to contest this Revisional Application in spite of service.

In order to consider the merits of the Revisional application on the basis of the contentions raised by the petitioner, and the case law cited on his behalf, it would appear proper to first go through the text of the alleged defamatory statements made, which have been quoted verbatim in the petition of complaint, as also the alleged defamatory Questions and Answers telecast in the programme "Voter Ghanta ". The alleged defamatory quotes are reproduced in the original language (Bengali) with their translations, followed by a text of the conversation in the Question - Answer Session (Annexure A to the complaint petition), translated by the Panelled Translator of the Central Translation Bureau, Ministry of Home Affairs, Government of India, as below -

(Translation) - Actually the foundation has been shaken, foundation has collapsed there is nothing to do, the final bell has been rung, bitten by mad dogs, C P M leaders are speaking nonsense wherever however.

(Translation) - I''ve just told you, Soniaji and Mamataji both have done this by heart and due to this long experience the language Monmohan Singh has heard from C P M for the last four and a half years, at least he has understood the stuff C P M is made of. Today standing in that position C P M has to be annihilated from West Bengal.

(Translation) - I have heard that after executing this agreement, when Buddhadev Bhattacharya returned to Alimuddin Street Party office, he had been caught by his party men and had perhaps a slap or two. Yes that''s why such bunkum, he had practically confessed that if the agreement is implemented the CPM party itself will be annihilated.

Question: One of the top leaders of district CPM Anil Basu has alleged that in the Singur movement the common people were forced to take part in the agitation by goons brought from outside - and that the people have now realized their mistake.

(Translation) - Kalyan Banerjee: These are old stories, I don''t know why it''s being suddenly said today. They are failures, unsuccessful, if we could do it with outsiders, they could have done it with the local people. They tried to set up some committee of Nano, did you not see it vanish like dust in fifteen minutes. If there were local people, they could do it. Actually, the foundation of the CPM has been shaken, its time for CPM to go that''s why they are talking all that rubbish as if they had been bitten by mad dogs.

Translation - (Not required as this Quote was not imputed to the petitioner, but was uttered by the other accused (No. 6) according to the complaint).

(Translation) - We will have plus in Jangipara.

CPM will have to step back, people have woken up people want a change. Let us see the rowdiness CPM can create.

[Annexure ''A'' to the complaint petition] -

(Conversation in the program "Voter Ghanta" on the CTVN Channel)

"Question: Welcome Kalyanbabu, for coming to us........... The first question I shall ask you is the parliament seat in which you are contesting has attracted the attention not only of West Bengal but entire India - now the Singur incident regarding which incident your rival political party that is I am talking of the Left are campaigning that you are opposed to industry. You have deprived people from the right to employment. A huge number of persons have lost the opportunity to get jobs because of you''ll. The allegation is directed straight to you all.......

Kalyan Banerjee: But if I say the reverse. Today Singur has become the Centre of attention in India because the question is being raised, whose right comes first today the ordinary farmers, ordinary people, just because an industrialist has his eye on a land he has to be given priority. Today the Nano etc. is not a factor, those who can''t open fifty seven thousand factories, can''t open hundred to one fifty factories in Serampore, they are trying to defraud on the pretext of the name of one Tata. A worthless government, its worthless some unethical government, Buddhadeb Bhattacharya the brainless Buddhadeb Bhattacharya is saying all this nowadays as the stooge of Tata Birla.

Question: This time there is a Congress Trinamool pact in the Serampore constituency where you are contesting. How far is the wind blowing in your favour due to this pact do you think while out on campaign?

Kalyan Banerjee: First of all the entire people of West Bengal had wanted this pact to remove the Left Front and as the people desired this, that is why today Soniaji and Mamtaji have created this understanding with great sincerity. As a result of this pact is in every parliament constituency, why just Serampore, but in this constituency apart from that I am involved for a long time with the rights of a lot of people. Starting from Bhikhari Paswan to Singur to Nandigram -Nandigram - Rizwanur are in other places but I am an important solder in two huge fights in Hooghly district, naturally my space is much bigger, successful space.

Question: We have seen that in any and every L of the legal fights of Mamata Bandopadhyay you have the role of the commandant - now there is a question that is arising today is that the claim that is being made I am coming back with Singur, it is being campaigned that if the land in Singur where the Nano factory was being built was snatched away from the farmers there would be no damage to the farmers - because it was a single crop land - now if you are told to made a counter campaign then what will you say?

Kalyan Banerjee: If someone tells constant lies than nothing can be done. Buddha Bhattacharya is telling constant lies, a big dramatist, he is play-acting. That land is four crop, five crop land, the Hooghly district land is farmer''s agricultural land, the Burdwan land is for farmers for agriculture and the circle that there is - that is the best agricultural land in West Bengal - everyone knows that. If someone doesn''t want to know the truth - if they wish to throw out the truth and re-establish falsehood there is no answer to that.

Question: So agriculture or industry?

Kalyan Banerjee: We want agriculture as well as industry there cannot be industry without agriculture and not just industry. We want both. But what I want to say first is we want to establish the existing industries. If I tell you that (illegible) your child is a little weak do you want to make him a little strong, what will be your answer..........

Question: Er, yes there is another question which is that while you''re out campaigning for the Lok Sabha, there is a hint of doubt in the people''s mind about the Congress Trinamool pact, many think that in many area, I am not talking of the Serampore area, in some area, that under current, will work, like it did in the past - Are you feeling anything in case of Serampore parliamentary area.............

Kalyan Banerjee: Those who are saying it now are wrong. Because this time people, I mean this time there have been real heart to heart talk. I''ve just told you, Soniaji and Mamataji both have done this by heart and due to this long experience the language Monmohan Singh has heard from C P M for the last four and a half years, at least he has understood the stuff C P M is made of. Today standing in that position C P M has to be annihilated from West Bengal. The biggest thing is the people of Bengal are wanting it. A big part of politics, no matter whether any political party or that political leader is successful only if they understand what the public wants. The public wants the pact. Hence I don''t think there is any under current beyond this. If there is any in a couple -that''s negligible. Nothing turns on it.

Question: One of the top leaders of district C P M Anil Basu has alleged that in the Singur movement the common people were forced to take part in the agitation by goons brought from outside - and that the people have now realized their mistake.

Kalyan Banerjee: First of all if Maoists are illegal, become illegal, then why did Buddhadeb Bhattacharyya not declare it even today, that''s number one. Number two is why they can''t capture one real Maoist in West Bengal? Actually the foundation has been shaken, foundation has collapsed there is nothing to do, the final bell has been rung, bitten by mad dogs, C P M leaders are speaking nonsense wherever however.

Question: And now they are very optimistic that this time the third front will come to power, third front will have the power...........

Kalyan Banerjee: This Buddha, Bangla - If he becomes the Prime Minister of India - India will be submerged. He''s taking the rounds of Nandan in dhuti Panjabi (Kurta), let him go around Nandan, have a little scotch etc. in the evenings, let it be limited to that bit, so that he can a little scotch etc. in future, if he begins to dream beyond that then his dhuti will go and also his panjabi."

From the aforesaid statements imputed to the petitioner it is clear that his tone and tenor was contemptuous and irreverent towards the then Chief Minister of West Bengal Mr. Buddhadeb Bhattacharyya in particular, and to a lesser extent also towards the CPI (M) which was the ruling party at the relevant time. The highlighted portions of the statements quoted above are per-se indecent, vulgar and defamatory specifically towards Mr. Bhattacharyya, the Chief Minister. Also, the language used is Unparliamentary, coming ironically from someone introducing himself as a "sitting Parliamentarian", as noted in Para 2 earlier.

It has however been contended that the complainant is not the "aggrieved person" when the complaint itself clearly makes out the case that the entity against whom the alleged defamatory or derogatory statements were made is a political party [CPI (M)] which is not a ''determinate, definite and identifiable body'', and so the proceedings at the instance of an individual member of the party are not tenable as he has not been individually defamed.

It has also been contended that the only identifiable person of the party happens to have be Mr. Buddhadeb Bhattacharya, who at the relevant time was the Chief Minister of the State of West Bengal, on account of which criminal proceedings at the instance of a private party for his alleged defamation are statutorily barred U/S. 199 (2) & (4) of the Cr. P.C.

In "Krishnaswami v. C.H. Kanaran" reported in LAWS (KER)-1970-9-3/TLKER-1970-0-133, which was also in relation to a complaint of defamation of the same political party, i.e., the Communist Party of India (Marxist), the High Court of Kerala had held-

"If a well-defined class is defamed, each and every member of that class can file a complaint. So, it follows that the defamatory words must reflect or refer to some ascertained and ascertainable person and that person must be the complainant. Where the words reflect on each and every member of a certain number or class, each and all can sue. But, this principle depends upon the determination of the number of persons of the class. A large body of men, the numerical strength of which is not known, nor could it be computed with any amount of precision, it cannot be said that each and every member of that group of persons constitution, such as a political party, each member of that party can be said to be defamed if the political group, such as the Marxist Communist Party is imputed with any libelous imputation.

On a review of the above decisions, it would be his difficult, in the circumstances of the present case, to say that the complainant, Sri C.H. Kanaran has been defamed on account of the present publication. It is sure that pws. 2 to 4 have deposed that when they read the news item they understood it that it referred to Sri C.H. Kanaran. That is because pws. 2 to 4 knew the complainant as a member of the Marxist Communist party and not because he was a person referred to in Ext. P1(b). if an indefinite and indeterminate body as the Marxist Communist Party or Marxists or leftists as a collection of persons as such are defamed, the fact that the collection of persons as such being an indeterminate and indefinite collection of body, it could not be said that each and every member of that body could maintain an action under S. 500 IPC., unless the complainant was referred to as a person who had been defamed under the imputation. In the relevant imputation, apart from the fact that the Secretary of the Marxist Communist Party had been defamed, the consequence of which will be considered by me at a later stage, it could be said on the evidence on record that there had been no defamation of the complainant as a member of a large body of the Marxists or Leftists belonging to the Marxist Communist Party, either of India as a whole, or much less of the Kerala State. Therefore, Sri C.H. Kanaran is not competent to file a complaint as a member of the Marxist Communist Party on the basis that the party or the Marxists had been defamed as he was not able to point out that he was the person against whom the imputation was levelled in Ext. P1 news item. (Emphasis added).

On a consideration of the above decisions, I am of the opinion that it would not be possible to say whether the imputation is alleged against Sri C.H. Kanaran or Sri P. Sundarayya. When there was another person of the description of the person in the imputation, it would not be possible to say who the person was referred in the news item referred to above. The evidence showed that Sri P. Sundarayya was as much involved as Sri Kanaran in the activities of the Marxists Party in Kerala. On a consideration of the evidence on record, I am of the opinion that the case of the complainant would not improve even if the proceeding is sent back to the trial court for continuation of the trial. Assuming that the allegation in Ext. P1(b) is against the Marxists or Leftists of Kerala, even then I am of the opinion that the complainant. Sri Kanaran cannot be pointed out as one among the large body of Marxists or Leftists of Kerala to have been defamed on account of the instant publication. It was not also possible for him to show conclusively that he was the person referred to as the General Secretary, when it was conceded by all the witnesses in the case that there was another person, who has satisfied the description of a General Secretary of the Marxist Communist Party of India, who had been defamed, it would not be worthwhile for remanding the case to the trial Magistrate to frame charge against the revision petitioner. I find, therefore, that no case against the 1st respondent, printer and publisher of the Indian Express was made out so as to frame charges under S. 500 and 501 IPC."

In G. Narasimhan, G. Kasturi and K. Gopalan Ors. Vs. T.V. Chokkappa, the Supreme Court held -

"20. That being so, the High Court completely missed the real issue, viz., whether the conference was a determinate and an identifiable body so that defamatory words used in relation to the resolution passed by it would be defamation of the individuals who composed it, and the respondent, as one such individuals and chairman of its reception committee could maintain a complaint under S. 500 of the Penal Code. Whether the Dravida Kaghagam was an identifiable group or not was beside the point, for, what had to be decided was whether the conference which passed the resolution in question and which was said to have distorted was such a determinate body, like the Tek Chand Gupta Vs. R.K. Karanjia and Others, or the body of public prosecutors in Sahib Singh Mehra Vs. State of Uttar Pradesh, as to make defamation with respect to it a cause of complaint by its individual members. In our view the High Court misdirected itself by missing the real and true issue arising in the applications before it and deciding an issue which did not arise from those applications. The judgment of the High Court, ''based on an extraneous issue, therefore, cannot be sustained.

In this view of the matter, we would have ordinarily remanded the case to the High Court. But such a procedure appears to be unnecessary, as in our view, the conference was not such a determinate class like the one in the cases referred to earlier, where complaints by its individual member or members were held maintainable. It is impossible to have any definite idea as to its composition, the number of persons who attended, the ideas and the ideologies to which they subscribed, and whether all of them positively agree d to the resolution in question. The evidence simply was that the person presiding it read out the resolution and because no one got up to oppose it was taken as approved of by all. The conference clearly was not an identifiable or a definitive body so that all those who attended it could be said to be its constituents who, if the conference was defamed, would, in their turn, be said to be defamed."

(Emphasis added).

In Balasaheb Keshav Thackeray Vs. State of Maharashtra and Another, the Bombay High Court had similarly quashed the criminal proceedings based on the offence of defamation under the IPC by observing -

"8.....A bare perusal of the complaint makes it clear that the alleged defamatory statements attributed to the petitioner do not relate to respondent No. 2 nor to the Congress Party to which he belongs. They also do not relate to the members/workers of the Congress Party as a class. They relate to two individuals only namely; Smt. Sonia Gandhi and Shri Sitaram Kesari, who are the leaders of the Congress Party. The alleged utterances are per-se indecent, vulgar and defamatory to both these persons, but there is nothing in those statements which is directed against respondent No. 2, he is not defamed. The persons who could be said to have been defamed are Smt. Sonia Gandhi and Shri Sitaram Kesari, whom the respondent No. 2 holds in high esteem. According to the respondent No. 2 the said defamatory statements have insulted the women as a class as well as all the Congressmen.

Respondent No. 2 claims a right to file a complaint for the said defamation on the ground that he is a Congressman and that the leaders of the Congress Party have been defamed. Two questions are, therefore required to be considered and they are; whether defamation of the said two leaders can be considered as the defamation of the Congressmen? The second question is whether on account of the alleged defamatory statements, respondent No. 2 can be regarded as "some person aggrieved" within the ambit of Section 199(1) of Criminal Procedure Code? In other words, whether respondent No. 2 has locus-standi to file a complaint for the alleged defamation of the two leaders whom he respects? Section 199(1) deals with prosecution for defamation and states:

"No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the offence.

Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf."

"10. The question as to who is the "person aggrieved" for the purpose of Section 199(1) of Criminal Procedure Code was considered by the Delhi High Court in Ganesh Anand Chela Vs. Swami Divyanand, wherein the facts were that the complainant was disciple of one P who was a spiritual head of the Ashram. Certain imputations were made against P suggesting that he was leading an immoral life. The said complainant filed a complaint under Section 500 of Indian Penal Code giving details of imputations and contending that they were patently false. It was nowhere stated in the complaint that P had renounced the world nor was there any explanation as to why P or the lady with whom he was alleged to have illicit relations could not file the complaint. The Delhi High Court quashed the complaint holding that one can say about the complainant is that he has a grievance about his Guru being defamed. It was held that the said grievance which the other disciples must also be sharing cannot make him the "aggrieved person" within the meaning of Section 199(1) of the Criminal Procedure Code.

In Shri Vijay Vishwanath Kuvalekar Vs. Shri Suresh Raghunathrao Kalkundrikar and another, the learned single Judge (Parkar, J.) of this Court considering the same question in relation to the complaint of defamation filed by a person in respect of the alleged defamation of his father who happened to be the sole trustee of a temple. The complaint was filed by the complainant during the lifetime of his father. The Magistrate issued process against the accused who then challenged that order by filing a revision application in the sessions Court but the same was dismissed. Thereafter the accused filed a petition under Section 482 of Criminal Procedure Code and Article 227 of the Constitution of India challenging the order of issue of process against him. The learned Judge allowed the petition observing that under Section 199(1) , cognizance of the offence punishable under Chapter XXI of the Indian Penal Code which pertains to defamation cannot be taken except upon a complaint made by some person aggrieved by the offence. The learned single Judge referred to the explanation 1 to 4 to Section 499 of Indian Penal Code as also the provisions of Section 199(1) of Criminal Procedure Code and observed that the aggrieved person could be the member of the family of the deceased against whom the imputation was directed or other relatives and/or a person aggrieved by the imputation concerning a company or an association or collection of persons. The learned single Judge held that the complainant could not be said to be the aggrieved person entitled to file complaint, and therefore, the cognizance taken by the trial court and process issued on his complaint were quashed. The ratio of this decision is therefore to the effect that the person aggrieved should be either the person defamed or any person covered by any of the explanations in Section 499 of the Indian Penal Code.

As pointed above, the alleged defamatory statements do not relate to the Congress Party or Congressmen as a class but they relate to two leaders of the said Party. According to respondent No. 2 the defamation of the said leaders is the defamation of all the Congressmen and that he being one of the Congressmen, is entitled to file the complaint. Assuming for a moment that the alleged Statements attributed to the petitioner are defamatory of the Congressmen as a class, still in view of the following decisions, it cannot be said that the complainant is entitled to file the complaint. In M.P. Narayana Pillai and Others Vs. M.P. Chacko and Another, the facts were that; an article consisting some derogatory statements pertaining to the Syrian Christian community as a whole was published. The statements were to the effect that the Syrian Christian girls working abroad are engaged in prostitution for livelihood. That Syrian Christian ladies are being sent to nunneries on account of the financial incapacity of their parents to give them away in marriage, and that Mother Theresa who is considered to be a living Saint of Christian community is doing missionary work for publicity alone. It was held that under Section 499 explanation II imputations against an association or collection of persons can be defamatory only if such persons are definite and determinable body. Only if there is a definite association or collection of persons capable of being identified it could be said that the imputation against it affects all of them and any member of the class can say that the imputation is against him also personally so as to entitle him to file a complaint for defamation. It was held that the Syrian Christian Community is an unascertainable body of persons, and therefore, no member of that body could say that he was individually defamed on account of the imputations. In the said case reference is made to the decision in Krishnaswami v. C.H. Kanaran, 1971 Ker LT 145 wherein it was held that the Marxist Community Party as a collection of persons as such was an unascertainable body. Similarly in Rai Kapoor v. Narendra Desai, (1974) 15 Guj LR 125 there were imputation made against the Bhangi community in general. It was held that the imputation would not amount to defamation because they were not directed against the particular group or members of that community which could be identified. It was observed;

"There was no imputation against the complainant as an individual. If he felt that as a member of the Bhangi community, he was defamed, that would not entitle him to maintain a prosecution for defamation unless the imputation was against him personally."

In Dhirendra Nath Sen and Another Vs. Rajat Kanti Bhadra, also, a Single Judge of this Court had quashed the criminal proceedings under section 500 of the IPC by holding that the complaint filed by a person of a certain community in a case of alleged defamation of the spiritual head of the community was not maintainable, as the complainant individually was not the aggrieved person in the matter of defamation of the community.

In the present case the allegation is that the petitioner by his derogatory statements caused defamation of the Communist Party of India (Marxist). The only identifiable member of that particular political party in the entire complaint happens to be Mr. Buddhadev Bhattacharya, the Chief Minister of West Bengal at the relevant time. Undoubtedly the highlighted statements of the petitioner are indecent, vulgar and derogatory. However there is a Statutory bar under section 199 (2) & (4) of the Cr.P.C for prosecution for the offence of defamation against the Chief Minister of the State at the instance of a private complainant. Under these provisions taking of cognizance in relation to the offence of defamation against certain specified Office holders and Public Servants including a Minister of the Union or of a State (which naturally includes a Chief Minister as well) without the previous sanction of the State Government is not permissible. The only exception in this regard is taking of cognizance of such offence by a Court of Session, and that too only upon a complaint made in writing by the Public Prosecutor. But in this case neither the complaint was filed after obtaining sanction from the State Government, nor was the cognizance taken by any Session Court. Consequently the proceedings so far as they relate to the alleged defamation of the Chief Minister of West Bengal at the relevant time are clearly unsustainable on account of the Statutory bar under section 199 (2) & (4) of the Cr.P.C.

Regarding the alleged defamation of the political party, this Court, in relying on the citations referred above, is in respectful agreement with the decision of the Kerala High Court that the Communist Party of India (Marxist) is not a determinable, definite or identifiable body or association of such nature that each and every member of the same stands to get individually defamed when an insinuation is made against the party as a whole. The Complainant therefore cannot be held to be defamed individually, and consequently is not an "aggrieved person" in the given case. On this count also therefore the complaint filed in the court of the Ld. Chief Metropolitan Magistrate would be untenable.

With the aforesaid observations the Revisional Application is allowed, and the order passed by the Ld. Chief Metropolitan Magistrate, Calcutta, on 12.05.2009, as also all further proceedings of Case No. C/23552 of 2009 of his Court are quashed.