Nandan Singh Koshyari vs Shiv Prasad Semwal and Others

Umesh Chandra Dhyani, J—Leave to appeal application was allowed. Leave was granted and the appeal against acquittal was admitted by this Court, vide order dated 28.8.2012.

Respondents were directed to be served with notices. Both were served, but even after personal service, no one turned up on behalf of the respondents. An amicus-curiae was, therefore, appointed to assist the Court on behalf of the respondents Lower Court Record was summoned and learned counsel the appellant, as also learned amicus curiae, were heard.

Present criminal appeal has been filed by the appellant being aggrieved against the judgment and order dated 25.4.2011 passed by learned Civil Judge (Senior Division)/Judicial Magistrate, Almora, in criminal case No. 33/10. Appeal filed before the wrong forum (Sessions Judge, Almora) was withdrawn. Learned trial Court, vide order dated 25.4.2011, acquitted the respondents of the charge under section 500 IPC. The respondents herein are respectively the Editor and Printer of esteemed Journal "Parvat Jan" being published from Dehradun.

The complainant (appellant herein) is the real brother of a MLA, who has been formerly the Chief Minister of Uttarakhand. The respondents have been publishing the Journal for the last several years. The same has wide circulation, not only in Uttarakhand, but throughout the country. In the monthly edition of December 2006, the respondents published an article with wrong facts. In such article, it was published that the MLA got a sum of Rs. 2,00,000/- sanctioned to his brother from discretionary fund of the then Chief Minister. The brother (appellant herein) is the owner of a printing press and a hotelier. The MLA orally authorized present appellant to file a criminal complaint case against the respondents, who published such an article with a view to tarnish the image of the former Chief Minister.

Learned Court below was of the view that the appellant was not authorized by his MLA brother to file criminal complaint case against the respondents. The news items relating to Shri Bhagat Singh Koshyari were published in the said Journal even thereafter, in January & February 2007. Shri Bhagat Singh Koshyari gave interview to such magazine. The image of the appellant or his brother was not tarnished. The lone witness Ramesh Chandra Dhapola did not say that the image of the appellant was lowered in the estimation of others. Learned Court below, in the impugned judgment, has also said that Ramesh Chandra Dhapola, met Ranjit Singh Bhandari, S.C. Mishra, Kamal Singh, and Pankaj Latwal, and admitted that, the appellant has since committed a wrong, therefore, his image has been lowered in the estimation of others. Learned Court below has also said that a corrigendum was published by the respondents in June 2008 issue (after more than 1 year) of the Journal. In their statements, the accused persons have clarified that the complainant was given a sum of Rs. 50,000/- from Journalist-fund and a corrigendum to this effect was published by them.

It was alleged by the complainant in his complaint that his brother was a strong contender for the post of Chief Minister of Uttarakhand, but, since a wrong message went to the Senior Leaders and Central Leadership of BJP, therefore, he was deprived of such post.

According to the trial Court, it is no where clear that the said article was published with a view to defame either the appellant or his brother.

The contention of the learned senior counsel for the appellant is that the intention of the respondents was to malign the name of the appellant. Notice was served on respondent No. 1, who was requested to name the informant of such wrong news item within 10 days of the receipt of the notice, but to no avail. According to PW-2, the reputation of the appellant was degraded in the eyes of the people. It was not a simple news item. The statement of PW-2 was sufficient to warrant the conviction of the respondents under section 500 IPC. It was wrongly published that Rs. 2,00,000/- were received by the appellant from the Chief Minister''s discretionary fund. The respondents cannot save their skin by publishing an ambiguous corrigendum after a year. Learned Lower Court has wrongly held that the criminal case ought to have been instituted against the respondents in the Court of District Pithoragarh only, where the appellant lives and runs his business. Authorization of his brother for filing the criminal complaint case under section 500 IPC was not required, according to learned senior counsel.

It was held by Hon''ble Apex Court in Criminal Appeal No. 433 of 2013, Gambhirsinh R. Dekare vs. Falgunbhai Chimanbhai Patel and another, decided on March 11, 2013, that:

"a news item has the potentiality of bringing doomsday for an individual. The Editor controls the selection of the matter that is published. He has to keep a careful eye on the selection. Blue-pencilling of news articles by anyone other than the Editor is not welcome in a democratic polity. Editors have to take responsibility of everything they publish and to maintain the integrity of published record. It can cause far-reaching consequences in an individual and country''s life".

"Journalists do not enjoy any special privilege, and have no greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of a citizen. 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 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. 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 fact like any other relevant facts 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."

"We are of the considered view that right of freedom of press is not higher than the right of freedom of speech of an individual and this right, as is said, is not an absolute right. This is a right guaranteed under Article 19 of the Constitution of India and this right is subject to restrictions mentioned in Article 19 of the Constitution of India and this right is subject to restrictions. Even without that, it is well settled principle of equity that, one''s freedom to move his arm ends where somebody''s nose starts. Freedom of expression or freedom of press would not certainly include freedom to defame. It would be, however, a different story if such publication is made which is factually correct and which is in public interest. Let us assume that a person is involved in antinational activities and a publication is made bringing it to the notice of the general public that such person is involved in antinational activities and if it is factually correct it would be in the interest of the public to know such accusation, but if such accusation is factually incorrect then damage would be done to the person about whom such a story is published. Therefore, we do not find that the law of defamation is in any way unreasonable or section 499 of I.P.C. violates any principles on which our democratic set up rests. Truth is an exception to the law of defamation."

The expression ''person aggrieved'', which is neither a technical term nor a term of art, is to be construed in its ordinary sense. In case of defamation, it is beyond dispute that the person defamed or the one against whom imputations adversely affecting his reputation or character are made, is the ''person aggrieved'' within the meaning of this expression as used in Section 199(1) Cr.P.C. A person who suffers or is adversely affected by the act complained of is obviously the person aggrieved. The expression "some person aggrieved" used in section 199 Cr.P.C. is not intended to be restricted to the person actually defamed. It must be determined in each case according to its own circumstances whether the complainant could be said to be, in a legal sense, a person aggrieved within the meaning of section 199 Cr.P.C.

"Defamation" is defined under section 499 IPC. It reads as under:

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

To constitute "defamation" under section 499 IPC, there must be an imputation and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.

However, as per Explanation 4 to the section, no imputation is said to harm a person''s reputation, unless that imputation directly or indirectly 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, in the estimation of others 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.

A defamatory matter may not specifically name the person to whom it relates, yet the facts given therein may be such as to leave no doubt in the mind of the reader about the person to whom the imputations relate. A complainant can often be able to make good this part of the case, even though his name is not mentioned in his libel.

Section 199(1) Cr.P.C. provides as under:

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

The Collocation of the words "by some persons aggrieved" definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the Court depending upon the facts of each case. If a company is described as engaging itself in nefarious activities its impact would certainly fall on every Director of the company and hence he can legitimately feel the pinch of it. Similarly, if a firm is described in a publication as carrying on offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it. Hence the respondents cannot justifiably contend that the real brother of former Chief Minister would not fall within the wide purview of "some person aggrieved" as envisaged in Section 199(1) of the Code of Criminal Procedure.

The expression ''by some person aggrieved'' in section 199 definitely indicates that the complainant need not necessarily be the defamed person himself. These words have a wider connotation than the words ''person defamed'', which is made clear by the use of the word ''same'' before the person aggrieved. If on the allegations made, the reputation of the entire family is at stake, his close relations are directly or indirectly affected thereby, will be covered by the expression ''aggrieved person'', as was held in the case of Abdul Hkim vs. State of U.P., 1973 Allahabad Criminal Cases 1. Whether the complainant has reasons to feel hurt on account of defamation is a matter to be determined by the Court depending upon the facts of each case. In the present case the complainant is appearing to be aggrieved person and so he has every right to bring the complaint. Thus the complaint does not appear to be barred by section 199 Cr.P.C.

Where the incriminating news was not published in the newspaper by the editor knowing or having good reason to believe that such matter was defamatory to the complainant, the editor had no ill will against him and had expressed regret for such publication, it was held in a decision that the editor could not be held responsible in connection with the defamation.

The trial court appears to have committed a mistake by holding that only the image of the brother of the appellant was allegedly tarnished in the estimation of others and the brother has not authorized the appellant to file the criminal complaint case. The trial court appears to have lost sight of the fact that the complainant has alleged, in his criminal complaint case, that not only the image of his brother, but also the image of the appellant, was lowered in the estimation of others. In such a situation, it was wrong on the part of learned court below to have held that the authorization of the brother of the appellant was required to file a criminal complaint case. It appears that learned trial court focused on the brother of the appellant and not on the appellant. It also appears that the news item relating to the release of Rs. 2,00,000/- from the discretionary fund of the Chief Minister in favour of the appellant was wrongly published. The same was probably from the journalist''s fund and that too Rs. 50,000/-. In their statements recorded under Section 313 Cr.P.C., although the accused persons have stated that they had no intention to defame the appellant in writing such news item, but the trial court ought to have looked at it from the point of view of a reasonable common man and should not have been swayed away by the statements of the respondents under Section 313 Cr.P.C. Much hype has been created by questioning as to why the criminal complaint was filed at Almora and, not at Pighoragarh, the usual work place of the complainant. It may be pointed out here that the news item was published in a Journal at Dehradun, which Journal has vide publication, not only in the State of Uttarakhand, but outside the State of Uttarakhand also. A few of the witnesses, who have come in support of the complainant in the witness box, said that by reading such a news item, the appellant and his brother''s image was lowered in their estimation. These witnesses belonged to Almora and, therefore, it was not proper on the part of the trial court to have said that since nobody came from Pithoragarh to substantiate the allegations leveled by the complainant, therefore, no offence under Section 500 IPC was made out against the respondents. The trial court will be required to reassess its finding that the image of the appellant and his brother was not lowered in the estimation of others. Since the complaint was filed by the complainant not only on his brother''s behalf, but also on his behalf and, therefore, there appears to be no requirement of the authorization of the appellant''s brother to file the criminal complaint case.

The trial Court therefore, fell in error in acquitting the accused persons, for the wrong reasons. The impugned judgment and order is accordingly set aside. It is directed that the Court below shall pass a fresh order, after hearing learned counsel for the parties, in accordance with law.

Any observation made by this Court in this judgment is for the decision of this case. It does not reflect on the merits of the allegation, which obviously should be dealt with by the trial Court, to whom the matter is remitted.