Criminal Writ Petition Nos.10 of 2011,Criminal Writ Petition Nos.47 of 2012

21st August, 2013

Petitioner Counsel: Mr. A.F. DINIZ, Mr. S. SHET, Mr. V.A. LAWANDE
Respondent Counsel: Mr. S.R. RIVONKAR, Mr. NAGESH T.

Cases Cited:
Sahib Singh Mehra Vs. State of U.P., AIR 1965 SC 1451 [Para 11,48]
Misrilal Mangilal Maternity and Child Welfare Centre Construction Committee Vs. K. Rajmallu And Ors., 1978 CriLJ 1360 [Para 12]
Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and others, (1996)6 SCC 263 [Para 13]
M. N. Damani Vs. S. K. Sinha, 2001 ALL MR (Cri) 1488 (S.C.) =(2001)5 SCC 156 [Para 13]
Homen Borgohain and others Vs. The Brahmaputra Valley Regional Handloom Weavers' Co-operative Society Ltd., 1995 Cri.L.J. 2357 [Para 14]
Vishwa Nath Vs. Shambhu Nath, 1995 Cri. L.J. 277 [Para 15]
Surendra Bhardwaj s/o Kedarnath Vs. The State, AIR 1957 MP 4 [Para 16]
G. Narasimhan & Ors. Etc. Vs. T. V. Chokkappa, AIR 1972 SC 2609 [Para 17]
John Thomas Vs. DR. K. Jagadeesan, AIR 2001 SC 2651 [Para 18]
Motorola Incorporated Vs. Union of India, 2003 ALL MR (Cri) 1903 =2004 Cri. L.J. 15760 [Para 20]
Jawaharlal Darda Vs. Manoharrao Ganpatrao Kapsikar, 1998 ALL MR (Cri) 921 (S.C.) =1998(4) SCC 112 [Para 21]
Editor Deccan Herald Vs. M. S. Ramaraju, 2005 Cri.L.J. 2672 [Para 22]
Nazeem Bavakunju Vs. State of Kerala & Ors., 1988 CRI.L.J. 487 [Para 23,49]
Rukmini Narvekar Vs. Vijaya Satardekar and others, 2008 ALL SCR 2279 =(2008)14 SCC 1 [Para 24]
Sewakram Sobhani Vs. R. K. Karanjia Chief Editor, Weekly Blitz and Ors., MANU/SC/0219/1981 : (1981)3 SCC 208 [Para 25,48]
Chandra Deo Singh Vs. Prokash Chandra Bose and Anr., AIR 1963 SC 1430 [Para 26]
Brahma Chellaney Vs. Marpol Private Limited & anr., 2005(1) Goa L. R. 613 [Para 29]
Radheshyam Kejriwal Vs. State of West Bengal and another, 2011 ALL SCR 500 =(2011)3 SCC 581 [Para 30]
M/s. Karam Chand Ganga Prasad & Anr. Etc. Vs. Union of India & Ors., 2010 ALL SCR (O.C.C.) 262 =1970 (3) SCC 694 [Para 31]
K. G. Premshanker Vs. Inspector of Police and Anr., 2003 ALL MR (Cri) 351 (S.C.) =AIR 2002 SC 3372 [Para 32]
Bhagat Ram Vs. State of Rajasthan, (1972) SCC 466 [Para 33]
Daryao And Others Vs. The State of U. P. And Others, AIR 1961 SC 1457 [Para 34]
Ramoji Rao, Chairman Ramoji Group of Companies and Anr. Vs. State of Andhra Pradesh, 2006 ALL MR (Cri) 3571 (S.C.) : 2006(8) SCC 321 37Ramoji Rao, Chairman Ramoji Group of Companies and Anr. Vs. State, 2006 ALL MR (Cri) 3571 (S.C.)=2006(8) SCC 321 [Para 37]
S. Khushboo Vs. Kanniammal and another, 2010 ALL SCR 1475=(2010)5 SCC 600 [Para 38]
Vivek Goenka, Managing Editor Vs. State of Maharashtra and another, 2003 ALL MR (Cri) 1735=2003 Bom. C.R. (Cri.) 1653 [Para 39]
Valmiki Falerio Vs. Lauriana Fernandese Diniz, 2005 ALL MR (Cri) 2509 [Para V40]
Rajendra s/o Late Vishwanath Chaudhary Vs. Smt. Nayantara, 2011 ALL MR (Cri) 3094 [Para 41]
Nippon Sheet Glass Co. Ltd. Vs. Raman Fibre Sciences Private Limited, (2011) Cr.L.J. 2702 [Para 42]
Sanatan Sanstha Vs. State of Goa and anr., 2007 ALL MR (Cri) 1827=2007(1) BCR (Cri.)865 [Para 43]
J. Jayalalitha Vs. Arcot N. Veerasamy, 1997 CRI.L.J. 4585 [Para 45]
R. Rajagopal @ R.R. Gopal @ Nakkheeran Gopal & Anr. Vs. J.Jayalalitha & Anr., (2006) 2 MLJ 689 [Para 47]
Dnyanesh Maharao Vs. Sanathan Sanstha, 2013 ALL MR (Cri) 2819 =WP62/2010, Dt.09/5/2013 [Para 50]
Shalini Shyam Shetty and Anr. Vs. Rajendra Shankar Patil, 2010 ALL SCR 1681=MANU/SC/0508/2010 : (2010)8 SCC 329 [Para 51]
Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Ors., (1976)3 SCC 736 [Para 52]
Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, (1995) 6 SCC 194 [Para 53]
State of Haryana Vs. Bhajan Lal, 2013 ALL SCR (O.C.C.) 1 =MANU/SC/0115/1992 : 1992 Cri.L.J. 527 [Para 53]
Pepsi Foods Ltd. and another Vs. Special Judicial magistrate and others, 1998 ALL MR (Cri) 144 (S.C.) =(1998)5 SCC 749 [Para 54]
Krishnan Vs. Krishnaveni, 1997 ALL MR (Cri) 651 (S.C.) =(1997)4 SCC 241 [Para 56]
Astec Life Sciences Ltd. Vs. State of Maharashtra, 2008 ALL MR (Cri) 1054 =(2008)2 Bom CR (Cri)109 [Para 57]
S.W. Palnitkar Vs. State of Bihar, (2001) 1 SCC 241 [Para 57]
Punjab National Bank & Ors. Vs. Surendra Prasad Sinha, 1993 Supp. (1) SCC 499 [Para 58]
Mohit alias Sonu and another Vs. State of U.P. and another, 2013 ALL MR (Cri) 3288 (S.C.)=2013 AIR SCW 3926 [Para 59]
H. K. Dua Vs. Chander Mohan, Deputy Chief Minister of Haryana, (2008)0 CrLJ 2301 [Para 62]

JUDGMENT

JUDGMENT :- These two petitions questioning continuance of two separate criminal cases against the petitioners' newspapers are being disposed of by this common judgment because of the common question of law involved, though facts giving rise to these petitions are different.

2. The petitioners in Writ Petition No.10/2011 are the Executive Editor and publishers of Marathi newspaper Pudhari. Before 22/11/2009, a meeting was held in Menezes Braganza Institution at Panaji. Advocate Govind Pansare - the accused no.4 and Dr. Narendra Dabholkar- the accused no.5 in the complaint, addressed the said meeting. The petitioners' newspaper published this news on 22/11/2009. The news item refers to Sanatan Sanstha and reports that Advocate Govind Pansare stated that the institutions like Sanatan Sanstha were harming religion. Similar were the observations of Dr. Narendra Dabholkar reported in the petitioners' newspaper.

3. After this news item was published, on behalf of Sanatan Sanstha, Shri Virendra Pandurang Marathe claiming to be its Managing Trustee, filed a complaint in the Court of Judicial Magistrate, First Class, Ponda for the offences punishable under Sections 500, 501 and 502 read with Section 34 of the Penal Code against the petitioners, Advocate Panasare and Dr. Narendra Dabholkar. It was alleged that this publication was defamatory and contained imputations, which were false to the knowledge of the accused. Learned Judicial Magistrate, First Class examined Virendra Marathe and one Shriram Parshuram. Shriram Parshuram stated that because of the article published in daily Pudhari, a doubt was created in his mind about the activities of Sanatan Sanstha. Learned Magistrate then directed issuance of process for the offences punishable under Sections 500, 501 and 502 read with Section 34 of the Penal Code.

4. The petitioner in Criminal Writ Petition No.47/2012 is the Editor of daily Lokmat published from Panaji. On 07/11/2009, a news item was published in daily Lokmat with Sangali date line. The headline was that some Sadhaks i.e. seekers, had disappeared from the complainant institution's Ashram i.e. seminary, because of loss of mental balance. The news referred to the fact that rules in the seminary were very strict and if a seeker committed any mistake, he was punished with being made to fast (starve). The news also mentioned that seekers suffered these punishments happily. It was also stated that training was provided to the seekers as to what they should do in the event of injustice against Hindus. A suspicion as to source of funding was expressed in the news item. The news item also mentioned that the seekers were used to disrupt communal harmony and that one Malgonda Patil, who was killed in Margao bomb explosion, was a seeker of Sanatan who was also involved in riots in Miraj.

5. After this news item was published, Virendra Pandurang Marathe, the Managing Trustee of Sanatan Sanstha, filed a complaint against the petitioners and the publisher and printer of daily Lokmat for the offences punishable under Sections 500, 501 and 502 read with Section 34 of the Penal Code. Learned Judicial Magistrate, First Class, Ponda examined the complainant and one Shriram Prasad Kushte and by order dated 01/03/2011, directed issuance of process for the offences punishable under Sections 500, 501 and 502 read with Section 34 of the Penal Code against all the accused persons.

6. The complainant Sanstha filed Special Civil Suit No.1/2010/A against the petitioner in Writ Petition No.47/2012 i.e. and the Printer and Publisher of Lokmat newspaper for damages of Rs.10 Lakhs on account of defamation caused by the same article, which is the subject matter criminal complaint. The plaint was rejected by order dated 21/12/2010 and an appeal is pending in this Court.

7. The accused persons i.e. petitioners in both these matters filed Criminal Revision Applications before the Court of Sessions seeking quashing of the processes issued against them. These revision applications nos.96/2010 and 42/2011 were rejected by the learned Additional Sessions Judge, Mapusa, Goa. Aggrieved thereby the petitioners are before this Court.

8. I have heard the learned Counsel for the petitioners and the learned Counsel for the respondent/ complainant as also the learned Public Prosecutor. The learned Counsel for the petitioners submitted that the complainant had no locus to file the complaint. They submitted first, that Shri Virendra Pandurang Marathe could not have been the trustee and could not have been authorised by the Trust to file the complaint. They referred to the Trust Deed which does not contain the name of Virendra Pandurang Marathe. The Trust seems to have been formed with five trustees, one of whom was Pandurang Ramchandra Marathe, the father of Virendra Marathe. The learned Counsel for the respondent/ complainant submitted that a Deed of Rectification was executed on 15/03/2005 under which the initial trustees who had, for one or other reasons, not been in a position to discharge the duties or had resigned were replaced. The learned Counsel for the petitioners submitted that even this Deed of Rectification does not clarify as to how Virendra Pandurang Marathe became trustee of the complainant Trust. They refer to the provision of Section 47 of the Indian Trust Act. The learned Counsel for the petitioners also wondered as to how one of the trustees could file such a complaint on behalf of the Trust to which learned Counsel for the complainant replied by pointing out that clause 14(N) of the Trust Deed enabled the trustees to delegate their power to do such acts or things as may be required for furtherance of the object of the Trust. Therefore, according to the learned Counsel for the complainant, there was nothing wrong in Virendra Pandurang Marathe prosecuting the complaint on behalf of the Trust.

9. I have considered this contention. So long as the petitioners do not set up some other persons as trustees of the Trust and do not show that such trustees did not desire that the petitioners should be prosecuted, this contention would not be open to the petitioners. Therefore, rather than allowing the petitioners to rake up the question as to who are trustees of the complainant Trust in this proceedings, the proceedings have to be examined by taking Virendra Pandurang Marathe as the trustee authorised by the Trust to prosecute the complaints. It would always be open to the petitioners to question his authority in an appropriate proceedings or even at the trial of these criminal cases at appropriate stage. Right now, the Court would have to proceed taking the claim of the complainant as true or accepting it at face value, since nothing to doubt his claim is placed on record.

10. It was next submitted that the Trust registered under Section 3 of the Indian Trust Act could not be said to be "a person" who could be defamed and, therefore, such Trust would not have right to file a complaint of offence punishable under Section 500 of the Penal Code. The learned Counsel relied on the provision of Section 199(1) of Cr.P.C. and submitted that since the Trust could not be the person aggrieved, it would not have locus to file the complaint. Such a trust could not claim to have been defamed. The learned Counsel for the respondent / complainant contested this proposition and submitted that the Trust could be "a person" for the purpose of offence of defamation and would have the locus standi to file a complaint in respect of its defamation. Both the learned Counsel for the parties relied on number of judgments in support of their respective contentions.

11. The first judgment on locus of a person to file complaint of defamation, on which the learned Counsel for the respondent/ complainant relied, is "Sahib Singh Mehra V/s. State of U.P." AIR 1965 SC 1451, where the Apex Court held as under :

"The next question to determine is whether it is essential for the purpose of an offence under S. 500 I.P.C. that the person defamed must be an individual and that the prosecuting staff at Aligarh or of the State of Uttar Pradesh could not be said to be a 'person' which could be defamed. Section 499 I.P.C. defines 'defamation' and provides inter alia that whoever makes 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 cases covered by the exceptions to the Section, to, defame that person. Explanation 2 provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. It is clear therefore that there could be defamation of an individual person and also of a collection of persons as such. The contention for the appellant then reduces itself to the question whether the prosecuting staff at Aligarh can be considered to be such a collection of persons as is contemplated by Explanation 2. The language of Explanation 2 is general and any collection of persons would be covered by it. of course, that collection of persons must be identifiable in the sense that one could, with certainty, say that this group of particular people has been defamed, as distinguished from the rest of the community. The prosecuting staff of Aligarh or, as a matter of fact, the prosecuting staff in the State of Uttar Pradesh, is certainly such an identifiable group or collection of persons. There is nothing indefinite about it. This group consists of all members of the prosecuting staff in the service of the Government of Uttar Pradesh. Within this general group of Public Prosecutors of U.P. there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh. This group of persons would be covered by Explanation 2 and could therefore be the subject of defamation."

12. Similar view has been taken by the High Court of Andhra Pradesh in Misrilal Mangilal Maternity and Child Welfare Centre Construction Committee Vs. K. Rajmallu And Ors., 1978 CriLJ 1360.

13. On this question of allegations about defamatory statements against a group or a community, the learned Counsel for the parties relied on the judgment in Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and others; (1996)6 SCC 263 where the Supreme Court held in respect of one of the two complaint cases which the Court was considering, as under :

"9. The next question is whether the learned Judge was right in holding that the complaint discloses offence punishable under Section 500 IPC? Section 499 defines 'defamation' thus:

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

10. Explanation 2 to the said section envisages that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

11. Explanation 4 provides that no imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

12. A reading of the complaint does not contain any of the allegations constituting the offence of defamation punishable under Section 500 IPC. The contents of the magazine are alleged to be defamatory against the Marwari community, lowering them in the estimate of the public or their reputation is lowered in the society. But we do not find any allegation made in the complaint. Accordingly, we hold that the complaint filed in the Court of the Judicial Magistrate, First Class in Court No. 4 at Pune does not contain any of the allegations so as to constitute the offence of defamation defined in Section 499 and punishable under Section 500. Consequently, the Magistrate was not justified in issuing the process against the appellant. The complaint is accordingly quashed."

As regards the other complaint, the Court observed in paragraph 13 as under :-

"13. As regards the allegations made against the appellant in the complaint filed in the Court of Judicial Magistrate, Ist Class, at Nasik, on a reading of the complaint we do not think that we will be justified at this stage to quash that complaint. It is not the province of this Court to appreciate at this stage the evidence or scope of and meaning of the statement. Certain allegations came to be made but whether these allegations do constitute defamation of the Marwari community as a business class and whether the appellant had intention to cite as an instance of general feeling among the community and whether the context in which the said statement came to be made, as is sought to be argued by the learned Senior Counsel for the appellant, are all matters to be considered by the learned Magistrate at a later stage. At this stage, we cannot embark upon weighing the evidence and come to any conclusion to hold, whether or not the allegations made in the complaint constitute an offence punishable under section 500. It is the settled legal position that a court has to read the complaint as a whole and find out whether allegations disclosed constitute an offence under Section 499 triable by the Magistrate. The Magistrate prima facie came to the conclusion that the allegation might come within the definition of 'defamation' under Section 499 IPC and could be taken cognizance of. But these are facts to be established at the trial. The case set up by the appellant are either defences open to be taken or other steps of framing a charge at the trial at whatever stage known to law. Prima facie we think that at this stage it is not a case warranting quashing of the complaint filed in the Court of Judicial Magistrate, Ist Class at Nasik. To that extent, the High Court was right in refusing to quash the complaint under Section 500 IPC."

In M. N. Damani Vs. S. K. Sinha reported at (2001)5 SCC 156 : [2001 ALL MR (Cri) 1488 (S.C.)] on which the learned Counsel for the respondent relied, the above paragraph 13 was quoted with approval by Supreme Court.

14. On the question of whether a society could claim to be person aggrieved in respect of a defamatory article as also the question whether Shri Virendra Marathe could file a complaint on behalf of Sanatan Sanstha, the learned Counsel for the petitioners relied on the judgment in Homen Borgohain andothers Vs. The Brahmaputra Valley Regional Handloom Weavers' Co-operative Society Ltd; 1995 CRI.L.J. 2357, where the Guwahati High Court held as under :

"2. Plea against the maintainability of the complaint in the above mentioned complaint case has been raised to the effect that the person aimed against in the impugned news item is not the Brahmaputra valley Regional Handloom Weavers' Co-operative Society Ltd., but the Managing Director Mr. Jagannath Sarma, and that as the Managing Director Mr. Sarma did not file the complaint as the person aggrieved, the defamation case file at the instance of the Co-operative Society is not maintainable.

. . ...

5. The opposite party as complainant filed complaint case as mentioned above Under Section 500/501/502 read with Section 34, of the I.P.C. alleging defamation by virtue of a news item published in the said Assamese weekly Asom Bani dated 3-9-1993 in the column "Dispur Darshan" under the caption "Choror Murat Tel" (oil on the head of the thief). The complainant felt humiliated and aggrieved as the news item tarnished the reputation of the complainant in the public eyes. The news items was published in Assames and the English translation has been reproduced as below :-

The Court then quoted the translation, and observed:

15. ..... There is no dispute that a Co-operative Society doing business in certain way may bring an action for defamation in respect of the publication of defamatory news item which effects its business reputation. ......

On facts, the Court held that the society was not the aggrieved person, and allowed the petition.

15. In Vishwa Nath V. Shambhu Nath; 1995 CRI. L.J. 277, the Allahabad High Court, while considering as to who could prosecute, the Court noted the following facts:-

"14. .... The learned counsel for the applicant argued that Shambhu Nath Pandeya-complainant, did not claim to be related to Hardei, whose name is mentioned in the article in question. It was argued that complainant Shambhu Nath Pandeya claimed that he was a Pujari in Sri Thakur Dauji Maharaj Birajman, Kasba Baldeo, district Mathura and was also a teacher in Sri Gomari Madhyamik Vidyalay village Khaira, Police Station Chhata, district Mathura. The article in question, it was argued, does not relate to the aforementioned two institutions where the complainant was employed. The complainant has made the said complaint on the allegation that he is a member of Ahiwasi Brahmin Community. This community, according to para 2 of the complaint, was originally inhabited in Mathura, Dauji and nearby villages and with the passage of time this community has spread over in the country and abroad. It was argued by the learned counsel for the applicant that Ahiwasi Brahmin community on the showing of the complainant himself is unidentifiable, indefinite and indeterminate body of persons and that no specific imputation has been made to the complainant individually or even as a member of the Ahiwasi Brahmins community."

. . ...

The Court then posed the following question :-

"19. The main question for determination is whether the Ahiwasi Brahmin community is a collection of persons identifiable, definite and determinate in relation to imputations or not......."

..... ...... ......

And held on facts as under :-

"27. On consideration of factual and legal matrix, I am of the opinion that Ahiwasi Brahmin community cannot be said to be a collection of persons, which is identifiable, definite, determinate in relation to the imputations made in the article. In view of this Sri Shambhu Nath Pandeya, who has not alleged any individual injury to himself, nor claims to be a relation of Hardei is not an aggrieved person within the meaning of Section 199, Cr. PC. ...."

It then proceeded to quash the proceedings.

16. On the question as to whether the complainant could maintain a complaint, as also whether the complainant should have an opportunity to prove its case, the learned Counsel for the respondent/ complainant relied on the judgment of High Court of Madhya Pradesh in Surendra Bhardwaj s/o Kedarnath Vs. The State; AIR 1957 MP 4, where the Court held as under :

"2........ It is true that the trend of law is that when a libellous attack is on a class of persons, it is deemed to be too wide to hurt any one in particular.

But all the same, though the attack may be general yet it may convey an innuendo at some particular person, (in the instant case the innuendo is said to be at Mr. Putto Singh, the D. I. G. Police) and then of course a person so aggrieved can prosecute. So far the prosecution has had no opportunity to lead evidence to show that though the articles revealed no names, yet they referred to Mr. Puttoo Singh. The prosecution should be given an opportunity to prove its case and I do not think that there is any substance in the objection which is sought to be raised at this stage."

17. On the question of maintainability of complaint by Shri Virendra Marathe on behalf of Sanatan Sanstha, the learned Counsel for the respondent/ complainant relied on the judgment in G. NARASIMHAN & ORS. ETC.Vs. T. V. CHOKKAPPA, AIR 1972 SC 2609, where the Apex Court held as under :

"14. On these contentions, the principal question for determination is whether the respondent could be said to be an aggrieved person entitled to maintain the complaint within the meaning of Section 198 of the Code. ......"

After considering the relevant provisions, the Court observed :

"15. Prima facie, therefore, if s. 198 of the Code were to be noticed by itself, the complaint in the present case would be unsustainable, since the news item in question did not mention the respondent nor did it contain any defamatory imputation against him individually. Sec. 499 of the Penal Code, which defines defamation, laid down that whoever by words, either spoken or intended to be read or by signs etc. makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that the imputation will harm he reputation of such person, is said to defame that person. This part of the section makes defamation in respect of an individual an offence. But Explanation (2) to the section lays down the rider that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. A defamatory imputation against a collection of persons thus falls within the definition of defamation. The language of the Explanation is wide, and therefore, besides a company or an association, any collection of persons would be covered by it. But such a collection of persons must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished. from the rest of the community, was defamed. .....

........ If a well-defined class is defamed, every particular member of that class can file a complaint even if the defamatory imputation in question does not mention him by name."

18. Again on the question as to who could file complaint for defamation, the learned Counsel for the respondent/ complainant, relied on the judgment in JOHN THOMAS Vs. DR. K. JAGADEESAN, AIR 2001 SC 2651, where the Apex Court held as under :

"10. The contention focussed by the learned senior counsel is that the respondent, who filed the complaint, has no locus standi to complain because he is only a Director of K.J. Hospital about which the publication was made and that the publication did not contain any libel against the complainant personally. It is not disputed that the complainant is the Director of K.J. Hospital. Explanation 2 in Section 499 of the IPC reads thus:

"Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such."

11. In view of the said Explanation, it cannot be disputed that a publication containing defamatory imputations as against a company would escape from the purview of the offence of defamation. If the defamation pertains to an association of persons or a body corporate, who could be the complainant? This can be answered by reference to Section 199 of the Code. The first sub-section of that section alone is relevant, in this context. It reads thus:

"199. Prosecution for defamation.- (1) 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."

12. 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. If K.J. Hospital is a private limited company, it is too farfetched to rule out any one of its Directors, feeling aggrieved on account of pejoratives hurled at the company. Hence the appellant cannot justifiably contend that the Director of the K.J. Hospital would not fall within the wide purview of "some person aggrieved" as envisaged in Section 199(1) of the Code."

19. I have carefully considered the ratione of the above judgments. It would be clear that an organisation could file a complaint for defamation through its office bearers. Thus, there is no substance in the objection of the petitioners that the complainant Trust could not be defamed or is not a "person", who could file a complaint in a Criminal Court alleging that it was defamed. Likewise, the petitioners cannot have any objection at this stage to the claim of Virendra Marathe that he has been authorised to file the complaint.

20. The judgment in Motorola Incorporated V. Union of India; 2004 CRI.L.J. 1576 : [2003 ALL MR (Cri) 1903], on which the learned Counsel for the petitioners placed reliance is obviously of no help, since in that case, the question was whether a company -which is not a natural person- could have requisite mens rea to commit an offence, to be made accused, and not whether such a juridical person could file a complaint.

21. The learned Counsel for the petitioners next submitted that the petitioners' newspapers had merely published a correct report for the public good and, therefore, the petitioners could not have been allowed to be prosecuted. They submitted that if such prosecutions are allowed to be launched against the newspapers which publish accurate reports about the events for public good, no newspaper will be able to work. They further submitted that there was absolutely no intention of the petitioners to defame the complainant and news reports were accurate and balanced reproduction of the news, which have been gathered. It was submitted on behalf of the petitioners that the reports published which are alleged to be defamatory are in fact accurate reporting of events published in good faith for public good and therefore could not amount to defamation. In support of this contention, reliance was placed on the judgment in Jawaharlal Darda Vs. Manoharrao Ganpatrao Kapsikar; 1998(4) SCC 112 : [1998 ALL MR (Cri) 921 (S.C.)], where the Apex Court held as under :

"5. It is quite apparent that what the accused had published in its newspaper was an accurate and true report of the proceedings of the Assembly. Involvement of the respondent was disclosed by the preliminary enquiry made by the Government. If the accused bona fide believing the version of the Minister to be true published the report in good faith it cannot be said that they intended to harm the reputation of the complainant. It was a report in respect of public conduct of public servants who were entrusted with public funds intended to be used for public good. Thus the facts and circumstances of the case disclose that the news items were published for public good. All these aspects have been overlooked by the High Court."

22. The learned Counsel for the petitioners submitted that all that the petitioners had done was to publish accurate and truthful reports. They submitted that in similar situations, Karnataka High Court quashed the criminal complaints in Editor Deccan Herald V. M. S. Ramaraju; 2005 CRI.L.J. 2672. The Court observed as under :-

"12. It appears that all that the petitioner had done was, he published the report that was given by the Secretary of the Trust and in the absence of any allegation having been made in the said news item against the respondent by the petitioner, it cannot be said that the publication of the said news item brings the case within the ambit of Section 499/501 of the I.P.C."

23. The learned Counsel for Lokmat Newspapers also submitted that even if a report is slightly exaggerative, it does not matter. The learned Counsel further submitted that the news published was a correct picture of affairs of the complainant, and even if there is some excess, it should not matter. For this purpose, he relied on the judgment in Nazeem Bavakunju V/s. State of Kerala & Ors. reported at 1988 CRI.L.J. 487, where the Kerala High Court held as under:

"7. In case of this nature if the contents of the news item published in the newspaper are slightly exaggerated it does not make the comment unfair so long as what is expressed therein is materially true and for public benefit. The publishers of the newspaper are entitled to make fair comments. The doctrine of fair comment is based on the hypotheses that the publication in question is one which, broadly speaking, is true in fact and is not made to satisfy a personal vendetta and that the facts stated therein would go to serve the public interest. Mere exaggeration or even gross exaggeration would not by itself prove malice. It has been held in Cheriyan v. Johnson, 1969 Ker LT 597 that the important ingredient of the 9th exception to S.499, I.P.C. is that the report made is substantially true and that the comment made basing on the facts, is supported by good faith."

24. The learned Counsel for the respondent/ complainant submitted that truth as defence can be raised by the appellants under 1st exception to Section 499 of I.P.C., but only at the stage of tendering defence evidence and not at this stage. The learned Counsel for the respondent/ complainant submitted that at this stage, the Court will have to proceed on the basis of the complaints as made and it would not be open for the Court to take into consideration any material which the accused may seek to produce. Learned Counsel for the petitioners submitted that unimpeachable material which the accused can produce, can be considered by the Court at this stage and for this purpose, relied on the judgment in Rukmini Narvekar Vs. Vijaya Satardekar and others; (2008)14 SCC 1 : [2008 ALL SCR 2279], where the Apex Court held as under :

"20. We have carefully perused the decision of this Court in State of Orissa v. Debendra Nath Padhi; (2005)1 SCC 568. .....

22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case;(2005)1 SCC 568, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

25. The learned Counsel for the respondent/ complainant submitted that the contentions which the petitioners seek to raise must await trial as they are questions of fact. For this purpose, he relied on the judgment in Sewakram Sobhani Vs. R. K. Karanjia Chief Editor, Weekly Blitz and Ors.; MANU/SC/0219/1981= (1981)3 SCC 208, where the Supreme Court held as under :

"5. 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 of any ill will or malice which the author bore towards the political group to which the complainant belonged? Was the article merely intended to malign and scandalise 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? These 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 of the accused is recorded can only be a priori conclusions. 'Good faith' 'public good' are, as we said, questions of fact and matters for evidence. So, the trial must go on.

... .. ....

12. We are completely at a loss to understand the reasons which impelled the High Court to quash the proceedings. The respondent, in his revision directed against the order of the learned Magistrate dated November 30, 1977, asserted in paragraph 5 that the case pre-eminently a fit case for quashing the impugned order either in the revisional jurisdiction of the High Court or in the exercise of its inherent powers under Section 482 of the Code to prevent the abuse of the process of law and to secure the ends of justice. ...

... .. ....

14. A bare perusal of the offending article in Blitz shows that it is per se defamatory. There can be no doubt that the imputation made would lower the appellant in the estimation of others. It suggested that he was a man devoid of character and gave vent to his unbridled passion. It is equally defamatory of Smt. Shukla in that she was alleged to be a lady of easy virtue. We need not dilate on the matter any further. It is for the accused to plead Ninth Exception in defence and discharge the burden to prove good faith which implies the exercise of due care and caution and to show that the attack on the character of the appellant was for the public good.

26. On the scope of intervention of the accused at the stage of issuance of process, the learned Counsel for the respondent/ complainant relied on the judgment in Chandra Deo Singh Vs. Prokash Chandra Bose and Anr.; AIR 1963 SC 1430, where the Supreme Court held as under :

"6. Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. ...

... No doubt, one of the objects behind the provisions of s. 202, Cr.P.C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint......

.... Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial."

27. From these judgments, it appears that the law as it now stands is clearly that the accused is entitled to place before this Court or revisional Court unimpeachable material to support the defence. In the cases at hand, there is no unimpeachable material forthcoming from the petitioners. They only claim that the news items published are accurate and balanced reproduction of events reported. As far as news in daily Pudhari dated 22.11.2009, it could be said to be a report of speeches delivered at the meeting by the co-accused who have not as yet alleged that the report is false. But if they deny having made such speeches, the petitioner would have to prove accuracy of the report. As far as news item dated 07/11/2009 in daily Lokmat, it is a roving comment by a reporter of the petitioners' newspaper on the working of the respondent, truth whereof will have to be tested at trial. Thus, there is considerable force in the contention of the learned Counsel for the complainant that the pleas sought to be raised by the petitioners, must await trial.

28. The learned Counsel for the petitioner in Writ Petition No.47/2012 submitted that the complainant had filed a suit for defamation against the petitioner and that said Civil Suit No.1/2010/A was dismissed. This fact was not considered by the Revisional Court. The Revisional Court should have considered this and dismissed the complaint. The learned Counsel also submitted that suppression of this fact by the complainant should have persuaded the learned Additional Sessions Judge to dismiss the complaint. The learned Counsel submitted that the Courts have taken a strict view about the parties indulging suppression of material facts.

29. Advocate V. A. Lawande submitted that had it been noticed by the Sessions Court that the complainant's suit was dismissed, the result of revision application would have been different. He relied on the judgment in Brahma Chellaney Vs. Marpol Private Limited & anr.; 2005(1) Goa L. R. 613, where this Court held as under :

"25. .... In my view, the complaint has been filed by respondent No. 2 by suppressing the result of the writ petition filed by the applicant in which some strictures were passed against respondent No. 2. Had the correct position of the said writ petition and the Judgment of the learned Single Judge of Delhi High Court 2002 (III) AD (Delhi) 465, been brought to the notice of the learned J.M.F.C, in my view, the learned J.M.F.C. might have not issued process against the applicant at all. It is but obvious for reasons stated herein above that respondent No. 2 has abused the process of the Court by filing a case of defamation through a Company whose Executive Director he is at present. This is a fit case to quash the process issued against the applicant and the proceedings in the said Criminal Case and to award in favour of the applicant costs of Rs.7000/- by respondent No.2."

30. The learned Counsel for Lokmat Newspaper next submitted that since standard of proof in criminal cases is higher, if in a civil proceeding, the accused is exonerated, it may not be proper to proceed with criminal case. For this purpose, he placed reliance on the judgment in Radheshyam Kejriwal vs. State of West Bengal and another reported in (2011)3 SCC 581 : [2011 ALL SCR 500], where the Supreme Court held as under :

"26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. .....

.... .... .....

31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case.

.... .... .....

88. ... No doubt, the conclusion of the adjudication in the case on hand, the decision of the Special Director dated 18-11-1996, may be a point for the appellant and it is for him to put forth the same before the Magistrate."

31. On the question of effect of judgments of Civil and Criminal Courts on pending proceedings, in M/s. Karam Chand Ganga Prasad & Anr. Etc. V/s. Union of India & Ors.; 1970 (3) SCC 694 : [2010 ALL SCR (O.C.C.) 262], on which Shri Lawande relied, the Apex Court has held as under:

"4. .... It is a well-established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true....."

32. While not questioning the correctness of legal principles, the learned Counsel for the respondent/ complainant submitted that dismissal of the suit has been questioned by the respondent /complainant by filing an appeal, which is pending before this Court and there is no question of suppression of any material fact. It was submitted that a judgment in any other proceedings, is not necessarily decisive of the matter and, therefore, according to learned Counsel for the respondent/ complainant, dismissal of the suit was not relevant, particularly when the appeal has been filed and is pending in this Court. Repelling the arguments about effect of dismissal of the complainant's suit, the learned Counsel for the respondent/ complainant relying on the judgment in K. G. Premshanker Vs. Inspector of Police and Anr., AIR 2002 SC 3372 : [2003 ALL MR (Cri) 351 (S.C.)], submitted that the dismissal of civil suit is irrelevant. In that case, the Supreme Court held as under :

"23. In this regard, we would first refer to the decision rendered by the Privy Council in Emperor v. Khwaja Nazir Ahmad (Supra). ....

The Court then quoted the following paragraph from the judgment of Privy Council.

....."It is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded upon the same or similar allegations. Moreover, the police investigation was stopped and it cannot be said with certainty that no more information could be obtained. But even if it were not it is the duty of a criminal court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding upon it."

33. The significance of judgment in Bhagat Ram vs State Of Rajasthan; (1972) SCC 466 cited at bar on the question of res judicata in criminal proceedings was not clear.

34. Same holds good about judgment in Daryao And Others vs The State Of U. P. And Others" AIR 1961 SC 1457, on which the learned Counsel for the respondent/ complainant relied.

35. I have carefully considered the rival contentions raised and in my view, the dismissal of the suit may not be decisive of the matter, more so, since the judgment has been questioned by preferring an appeal in the High Court, and the appeal is still pending.

36. The learned Counsel for the petitioners submitted that the petitioners had absolutely no intention to defame the respondent/ complainant and had the respondent/ complainant furnished any clarification about the news item, they would have published said clarification in their newspapers. They claimed to have made such offer to the complainant. In any case, they submitted that the petitioners were ready to publish in their respective newspapers that the news items which are subject matter of this criminal complaint, was the view expressed by the speakers or authors of the news and not the view of the newspapers and that the petitioners harboured no malice to defame the complainant. Therefore, according to the petitioners, continuance of prosecution against the petitioners would amount to avoidable harassment and abuse of process of the Court.

37. The learned Counsel submitted that existence of criminal intention was sine qua non for such prosecution. In Ramoji Rao, Chairman Ramoji Group of Companies and Anr. Vs. State of Andhra Pradesh; 2006(8) SCC 321 : [2006 ALL MR (Cri) 3571 (S.C.)], on which Advocate Diniz for the petitioners relied, on this aspect, the Supreme Court held as under :

"3. Though many points were urged in support of the appeal, learned counsel for the appellants submitted that actually there was no intention in any manner to harm the reputation of the Chief Minister, of the ministers or the officials and, therefore, continuance of the proceedings would not be in public interest.

4. Learned counsel for the respondent on the other hand submitted that after showing the Chief Minister, ministers and the public officials in poor light, the appellants cannot take the plea of innocence.

5. After hearing learned counsel at some length, we think that public interest would be best served in directing the following broadcast to be made in the TV channel concerned by the appellants within a period of one week from today."

The Supreme Court then set out as to what was to be telecast.

Therefore, the learned Counsel submitted that with the petitioners publishing necessary clarification, the matter should come to an end.

38. In S. Khushboo Vs. Kanniammal and another; (2010)5 SCC 600 : [2010 ALL SCR 1475], the Supreme Court considered the necessity of showing intention to harm the reputation and held as under :

"34. It is our considered view that there is no prima facie case of defamation in the present case. This will become self-evident if we draw attention to the key ingredients of the offence contemplated by Section 499 IPC, which reads as follows: (the Court then quoted Section 499 of I.P.C. and observed:)

The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm......"

39. The learned Counsel for the petitioners submitted that the complainant was required to show that the petitioners as publishers of newspapers harboured the intention to harm the reputation of the complainant. In Vivek Goenka, Managing Editor Vs. State of Maharashtra and another; 2003 Bom. C.R. (Cri.) 1653 : [2003 ALL MR (Cri) 1735], on which the learned Counsel relied, this Court, after quoting Section 499 of I.P.C., held as under :

"4. ...Therefore, it is obligatory on the part of the complainant to make the averments, at least, in the complaint which would show that the person speaking or printing the matter intended to be read or making the signs, making the visible representation in respect of any imputation, was having the intention to harm that person or was having knowledge or having the reason to believe that such imputation will harm the reputation of such person. In the absence of that, the magistrate should not take cognizance of such complaint made to him because as declared by the Supreme Court in the judgment of K.M. Mathew vs. State of Kerala (supra), no presumption can be drawn in view of section 7 of the Press and Registration of Books Act, 1867 unless there is a specific averment in the complaint that such an accused was having knowledge of publication of such imputations or having reason to believe that such imputation is or would be likely to be published in the newspaper under his direct control. The Magistrate should not take the cognizance of such complaint if there is no positive averments in the complaint which would bring in the ingredients as indicated by section 499 of the Indian Penal Code.

5. The Magistrate has to keep in mind the regular course of business of printing and publishing news in newspapers. News are collected by the reporters and sent to the office of a newspaper. The News Editor or his assistants deal with such news items and they take the decision to publish it in the newspaper. Alternatively, the members of the public send news captions to the newspapers. They are assembled, collected, scanned by the News Editor and his assistants. The News Editor generally takes the decision to allow its publication. Therefore, there has to be a specific allegation in the complaint that the Chief Editor or the Managing Editor was having the knowledge of such publication of the imputation in the newspaper. If there is no such positive averment in the complaint, the Magistrate should not take the cognizance of such complaint because every prosecution indicates annoyance, loss of money in fighting out the litigation, loss of money by spending the time in the litigation and abstaining from the ordinary occupation of livelihood. While issuing the process the Magistrate is bound to apply his judicial mind to the averments made in the complaint and has to take a judicial decision whether he should issue the process or not. He is not supposed to act mechanically."

40. The learned Counsel for Lokmat newspaper relied on the judgment in Valmiki Falerio V. Lauriana Fernandes e Diniz; 2005 ALL MR (Cri) 2509, where this High Court, considering contents of a public notice, held as under :

"22. ..... The commission of offence of defamation or publishing any imputations concerning any person must be "intending to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person (emphasis supplied)."

After considering the recitals of the notice, the Court held :-

"A reading of the notice, on the face of it, does not show that it was published with intention or knowledge to harm the reputation of the complainant. In my view, the learned Sessions Judge was right in exercising his discretion to quash and set aside the Order issuing process against the aforesaid accused."

41. In Rajendra s/o Late Vishwanath Chaudhary V. Smt. Nayantara; 2011 ALL MR (Cri) 3094, on which Advocate Shri Lawande relied, this Court was considering again recitals of a notice and made similar observations.

42. In Nippon Sheet Glass Co. Ltd. V/s. Raman Fibre Sciences Private Limited reported at (2011) Cr.L.J. 2702, on which Advocate Shri Lawande relied, the High Court of Karnataka was considering the contents of an advertisement, and had held that process could not have been issued in the facts unfolded.

43. In Sanatan Sanstha Vs. State of Goa and anr. 2007(1) BCR (Cri.)865 : [2007 ALL MR (Cri) 1827], the Court held as under :

"18. The essence of offence of defamation is the harm caused to the reputation of a person. Character is what a person actually is and reputation is what neighbours and others say he is. In other words, reputation is a composite hearsay and which is the opinion of the community against a person. Everyone is entitled to have a very high estimate of himself as the complainant does, in this case but reputation is the estimation in which a person is held by others. The commission of offence of defamation or publishing any imputations concerning any person must be "intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person" (Emphasis supplied). The ingredients of Section 499/500, I.P.C. are (f) there must be a making or publication; (ii) that what is made or published must amount to words, signs or visible representation; (iii) that what is made or published must be an imputation and (iv) it must be made with the intention to harm or with knowledge that it will harm the reputation of another." ...

The Court then considered the facts of that case and held :

.... "In this view of the matter, no process could have been issued by the learned Magistrate. The Order quashing the issue of process therefore could not be faulted."

44. Intention has always to be gathered from the circumstances unfolded and not on the basis of ex-post facto declaration of absence of intention to harm the reputation. If the reports are eventually proved to be accurate, absence of intention to harm will have to be inferred. But without such proof, such absence of intention cannot be presumed.

45. It was submitted that there is no averment in the complaints that the reputation of the complainant is in fact lowered by the publication of offending news items. In J. Jayalalitha V/s. Arcot N. Veerasamy reported at 1997 CRI.L.J. 4585, cited by Shri Lawande on the necessity of such an averment, the Madras High Court held has under:

"33. Thus, the conjoint reading of Section 499 I.P.C., with this Explanation 4, would make it clear, that in the complaint, there shall be an averment to the effect, that because of the imputation, the complainant's reputation had been lowered in the estimation of others. As indicated earlier, this important ingredient is absent in the complaint and in the sworn statement."

46. It was submitted that the witnesses examined are followers of the complainant and could not have been affected by the views expressed in the concerned news items, which in any case, were not the views of the petitioners' newspapers concerned. Here too, the learned Counsel for the complainant submitted that there are necessary averments in the complaints and that it would not be open for the Court to embark upon a close scrutiny on what has been stated by the complainant's witnesses in the course of their examination by the learned Magistrate. They submitted that since the witnesses have stated that doubts were raised in their minds about the working of the complainant, it was rightly held as sufficient by the Courts below as indicative of defamation. In my view, at this stage, appreciation of evidence is impermissible and the court will have to take statements at their face value.

47. The learned Counsel for Lokmat newspaper submitted that media have a role to play in informing the society and freedom of expression must be respected. He relied on the judgment in R. Rajagopal @ R.R. Gopal @ Nakkheeran Gopal & Anr. V/s. J.Jayalalitha & Anr. reported at (2006) 2 MLJ 689, where the Madras High Court has held as under:

"29. The fundamental right of freedom of speech is involved in these proceedings and not merely the right of liberty of the press. If this action can be maintained against a newspaper, it can be maintained against every private citizen who ventures to criticise the ministers who are temporarily conducting the affairs of the government. In a free democratic society those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. As observed in Kartar Singh's Case (supra) the persons holding public offices must not be thin-skinned with reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time. At times public figures have to ignore vulgar criticisms and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same. In the instant case, the respondents have already chosen to claim damages and their claim is yet to be adjudicated upon. They will have remedy if the statements are held to be defamatory or false and actuated by malice or personal animosity."

This judgment is unhelpful, since the question involved was restraining publication of defamatory material.

48. The learned Counsel for the respondent / complainant stated that the media has strong influence on public, therefore, it must publish these news items responsibly, taking good care before publishing anything which tends to harm the reputation of a person, as observed by the Supreme Court in Sahib Singh Mehra V/s. State of U.P. " AIR 1965 SC 1451, referred to in earlier part of this judgment. The learned Counsel also drew my attention to paragraph 16 of the judgment of the Supreme Court in Sevakram Vs. R. K. Karanjia; (1981)3 SCC 208 which reads as under :

"16. 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 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 and Ors. ILR 1943 Nag. 347."

49. I have carefully considered the rival contentions. There can be no doubt that the press and media have a role to play in keeping the common man informed about the activities of public bodies, particularly when such activities are funded by public. They would have a similar role in respect of activities of public personalities, persons holding public offices. If media is gagged, probity in public life would be a casualty. The role of keeping common man informed is extremely important for survival of democracy. This role has, however, to be played with great responsibility. Though much water has flown down the Ganges since Sevakram was decided, or rather the holy river is much polluted now, it still remains the Holy Ganges and so does the principle in Sevakram that journalists do not have any special privileges or greater freedom than others. Though Kerala High Court in Nazeem Bavakunju (supra) seems to have allowed slight exaggerations so long as the reports themselves are materially true and made for public benefit, this would essentially be a matter to be dealt with at the trial. In the present times of quicksand of public opinion, on which fraudsters thrive, the media would indeed be handicapped, if forced to shut up till proper proof of truth is not in its hands, and the sufferer would be the common man, who may have been swindled in the mean time. May be, the media needs to be protected from being required to face actions for bonafide reports in respect of public activities of public bodies and holders of public offices. If they are allowed to hide behind their right to privacy and reputation (possibly dubious reputation), the common man and the democracy would suffer. It may be necessary to treat private activities of private individuals differently from public activities of public bodies and public personalities, as also individual act of defamation and media reporting, of course discriminating between responsible journalism and yellow journalism. De-criminalisation of media reporting may have to be debated upon, so that all pros and cons are considered and then media could be freed of the fear of being dragged in long drawn criminal proceedings. But this will have to await legislation. Right now, in order to claim that the reports in question are truthful reports published for public good, the petitioners would have to participate in the trials.

50. The learned Counsel for the respondent/ complainant submitted that the respondent institution is carrying out several activities like running schools, clinics, homes for aged etc. For all these activities, the respondent/ complainant needs funds, which come from donors. This type of statements published by the petitioners hurt the reputation of the respondent/ complainant even financially and, therefore, according to the learned Counsel for the respondent/ complainant, there was sufficient material to proceed against the petitioners, as rightly held by the Courts below. Precisely for this reason, if there is some grain of truth in the allegedly defamatory reports, the donors have a right to know and the media has the duty to report. The learned Counsel for the respondent also submitted that in a similar case, initiated by the respondent in WP62/2010 dated 09/05/2013 : [2013 ALL MR (Cri) 2819] (Dnyanesh Maharao Vs. Sanathan Sanstha), a learned Single Judge of this Court held on facts as under :

"4. Copies of defamatory articles published in the magazine and their translation in English have been annexed to the petition. I have gone through the same and am of the opinion that articles can be said to be perverse defamatory. In these circumstances order of issuance of process by the trial Court and confirmation of that order by the Sessions Court cannot be faulted with."

This may not be decisive of the cases before the Court now, since the Court had come to a conclusion on seeing the articles in question.

51. The learned Counsel for the respondent/ complainant submitted that these were not fit cases for invocation of jurisdiction under Section 482 of Cr.P.C. or Articles 226/ 227 of the Constitution. He submitted that such invocation has to be only in rare cases of irremediable injustice. For this purpose, he relied on a number of judgments. He submitted that in Shalini Shyam Shetty and Anr. vs. Rajendra Shankar Patil, MANU/SC/0508/2010= (2010)8 SCC 329 : [2010 ALL SCR 1681]; the Supreme Court while considering the limits on those powers held as under :

"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) ......

(b) .......

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) .......

(e) .......

(f) .......

(g) .......

(h) .......

(i) ........

(j) .......

(k) .......

(l) .......

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

The learned Counsel submitted that in the same judgment, the Supreme Court had deprecated frequent interference by the High Courts in the work of trial Courts in the following words :

"81. As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice."

52. The learned Counsel for the respondent complainant submitted that in Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and Ors; (1976)3 SCC 736, the Supreme Court considered the circumstances under which order of issuance of process could be quashed and held as under :

"5........ Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

53. On the question of power of the High Courts to quash complaints either by invoking power under Section 482 of Cr.P.C. or Article 227 of the Constitution, the learned Counsel for the respondent relied on the judgment in Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another; (1995)6 SCC 194, where the Supreme Court quoted oft-quoted passage from the judgment in State of Haryana v. Bhajan Lal MANU/SC/0115/1992 : 1992 CriLJ 527 : [2013 ALL SCR (O.C.C.) 1] answering the above question as under :

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mula fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry us to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. (emphasis supplied)

54. His learned adversaries on the other hand, relied on the following judgments on the question as to when power under Section 482 of Cr.P.C. may be exercised. In Pepsi Foods Ltd. and another Vs. Special Judicial magistrate and others; (1998)5 SCC 749 : [1998 ALL MR (Cri) 144 (S.C.)], the Supreme Court held as under :

"22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal; 1992 Supp (1) SCC 335, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. .....

...... ..... .....

28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. ......

...... It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

The Court then considered whether the accused could be asked to seek discharge before the trial Court and observed as under : -

"29. No doubt the magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. ......

..... If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the magistrate as well, as the magistrate will not give any different conclusion on an application filed under section 245 of the code. The High Court says that the appellants could very well appear before the court and move an application under Section 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants."

55. It is thus clear that had the High Court not expressed itself on the merits of the matter, the parties could have been asked to avail of remedies available before the Trial Court.

56. In Krishnan V. Krishnaveni;(1997)4 SCC 241 : [1997 ALL MR (Cri) 651 (S.C.)] on which the learned Counsel for Lokmat newspaper relied for illuminating the scope of jurisdiction under Section 482 of Cr.P.C., the Apex Court held as under :

"10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397 (1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397 (3) or section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstance, to exercise the inherent power and in an appropriate case even revisional power and in appropriate case even revisional power under Section 397 (1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity or procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justices can be ensured only when trial is conducted expeditiously."

57. Reiterating the same principles, in Astec Life Sciences Ltd. V. State of Maharashtra; (2008)2 Bom CR (Cri)109 : [2008 ALL MR (Cri) 1054], on which the learned Counsel for Lokmat newspaper relied, this High Court quoted from the judgment in S.W. Palnitkar v. State of Bihar (2001) 1 SCC 241 to the following effect :

"2. Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution."

58. In Punjab National Bank & Ors. V/s. Surendra Prasad Sinha reported at 1993 Supp. (1) SCC 499, the Apex Court underlined that

"Judicial process should not be an instrument of oppression or needles harassment" and that "there lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for."

59. In Mohit alias Sonu and another V. State of U.P. and another; 2013 AIR SCW 3926 : [2013 ALL MR (Cri) 3288 (S.C.)], the Apex Court held as under :

"23. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged." (emphasis supplied)

60. The learned Counsel for the petitioners submitted that the petitioners have no other remedy but to invoke the jurisdiction of this Court under Article 227 of the Constitution and Section 482 of Criminal Procedure Code, since the petitioners have already exhausted the remedy of revision before the sessions Court. The learned Counsel also submitted that since the offences for which the processes have been issued, are triable as summons case, there would be no occasion for the petitioners to require the trial Court to record the evidence of complainant and other witnesses before framing of charge and then to make out a case for discharge. Therefore, they submitted that though inherent powers are to be sparingly used, these are the cases where those powers as well as power of superintendence ought to be invoked.

61. I have carefully considered the limitation on exercise of inherent jurisdiction of this Court as also the extent of power of superintendence vested in this Court under Article 227 of the Constitution. There could not be doubt that when no other remedy is available to the party, recourse could be had to the inherent jurisdiction of this Court to ensure that failure of justice does not occur, though such exercise may amount to circumventing the bar under subsection (3) of Section 397 of Cr.P.C. for filing a second revision. Therefore, the petitions cannot be rejected on the ground that inherent power or the power of superintendence, has to be exercised sparingly and in rare cases where grave miscarriage of justice would occur on account of abuse of process of the Court. The question, however, boils down to this : whether the complainant was justified in approaching the criminal Court on publication of reports by the petitioners' newspaper and whether these complaints by the complainant amounted to abuse of process of the Court ? As already observed elsewhere, the report in Lokmat Newspaper dated 07/11/2009 is an investigative report by a reporter of the newspaper with Sangali dateline. It is not a report about any incident which the reporter had gathered. Therefore, till it is shown that the report is truthful reproduction of what had been found by the reporter, which was required to be published in the interest of public good, it could not be said that the complainant was not justified in approaching the criminal Court. As far as the report dated 22/11/2009 in daily 'Pudhari', it pertains to speeches by Advocate Panasare and Dr. Dabholkar in a meeting held in Panaji. If Advocate Panasare or Dr. Dabholkar, who are arrayed as co-accused, say that the report published in the newspaper is true and correct reproduction of what they spoke, then, may be the petitioners would be able to make out a case of having been unnecessarily dragged in criminal Court. But this is a matter of conjecture and at this stage, the petitioners' editor and publisher of Pudhari Newspaper cannot be absolved in the hope that Advocate Panasare or Dr. Dabholkar would admit to making of allegedly defamatory statements in their speeches. Therefore, viewed thus, it cannot be said that the proceedings initiated by the complainant against the petitioners in the two petitions are either abuse of process of the Court or their continuance would result in irremediable failure of justice. The rigours to which the petitioners would be subjected by being made to face the trial, could be mollified by the learned Magistrate granting the petitioners exemption from appearance at the trial, if they ensure that they are represented by an Advocate and the trial is not held up by their absence and if they keep themselves present at the conclusion of the trial. There is, however, another aspect of the matter which is required to be considered, pertaining to the role of various functionaries in a newspaper's publication.

62. In H. K. Dua V. Chander Mohan, Deputy Chief Minister of Haryana; (2008)0 CrLJ 2301 cited by Advocate Shri Lawande, the Punjab and Haryana High Court held as under about the responsibility of management and editors of news papers.

"14. A perusal of the provisions of the Press Act would, thus, show that the Legislature took into account the inconvenience and hardship to which a person aggrieved from a publication would be put if he is required to make a fishing or roving enquiry about the persons who personally would be responsible for the making or publishing of an offending matter, particularly where the paper is owned by a big Company employing numerous persons. .......

....... In the Press Act, the person who is declared as editor is presumed to be responsible to control the selection of the matter published in a newspaper. The word "Chief Editor" is conspicuously absent from the Press Act and it appears for the obvious reasons as the Act has selected only one person who has a special status and he is the "editor" who can be sued or prosecuted, A presumption under Section 7 of the Press Act can be drawn against him alone and none else."

The responsibility of the petitioners qua the allegedly offending content would have to be decided according to these observations.

63. The petitioners in W.P. No.10/2011 are the Executive Editor, Pudhari Publication Private Limited, Company which publishes the newspaper, and Chairman of the Newspaper Company as also its Chief Editor. Applying the principles in the aforesaid judgment, the responsibility of publishing the news item would be that of the petitioner no.1 Dilip Babasaheb Londhe only, since he was Executive Editor of the newspaper. The publishing company and Chairman and Chief Editor may have nothing to do with the day to day working of the newspaper and may not be in a position to control the content in the newspaper. Therefore, as far as their joinder is concerned, it may amount to unnecessary harassment to them.

64. To sum up, a trust can be defamed and can file a complaint for its defamation. Virendra Marathe could file a complaint on behalf of the trust so long as it is not shown that the trustees had not authorised him or that he was not at all a trustee. The newspapers do not have any additional protection or privilege in the matters of defamation and would have to face such proceedings, if any defamatory article is published. The defence that the news report was a correct report published for public good, would have to await recording of evidence at the trial and could not be a matter of presumption or inference. Therefore, though the jurisdiction of this Court could be invoked in appropriate cases under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution, since the defence set up by the petitioners is that of truthful reporting in the interest of public good, the petitioners would have to prove it at the trial. Except for the Editor of the newspaper who is responsible for determining the content to be published in the newspaper, the Company itself or the Chairman or Chief Editor of a Newspaper chain could not be attributed to relevant mens rea for being made co-accused in such a complaint.

65. In the result, Writ Petition No.10/2011 is partly allowed. The proceedings in Criminal Case No.5/P/2010/A against petitioner no.2 M/s. Pudhari Publications Private Ltd and petitioner no.3 Pratapsing Jadhav are quashed and set aside. Writ Petition No.47/2012 is dismissed.

66. It is clarified that no observations made in this judgment shall influence the appreciation of evidence by the learned trial Magistrate at the trial and all factual questions are kept open.

Ordered accordingly.