Case BriefsHigh Courts

Madras High Court: While answering important questions related to freedom of press; meaning of criminal defamation against the State and requisites of Section 199(2) of Criminal Procedure Code, the Single Judge Bench of Abdul Quddhose, J., observed that, application of mind by the State to the materials placed on record before granting sanction to the public prosecutor for launching prosecution under Section 199(4) CrPC is a necessary and that the State cannot act on an impulse or a whim. Moreover public prosecutor must independently assess the materials available on record and must independently take a view as to the availability of sufficient materials to launch prosecution on behalf of the State under Section 199 (2) CrPC.

As per the facts of the case, writ petitions were filed by several reputed editors challenging the Order launching the prosecution for criminal defamation against them by the State Government under Section 499 of Penal Code, 1860 and Section 199(2) of CrPC. The State Government of Tamil Nadu initiated the proceedings after the newspapers published articles against the then Chief Minister, J. Jayalalitha, which were considered defamatory in nature.

The counsel for the petitioners P.S. Raman and M.S. Murali, contended that freedom of press is considered a foundation for proper functioning of democracy and criticism should not be viewed as defamation, because in a free democratic society, those who are responsible for public administration should be open to criticism and citizens have a legitimate right to know the conduct of public officials as they have an influential role in society. It was further contended that the articles in question, did not pertain to the conduct of the public functionary in the discharge of his/her public functions; the sanction for prosecution was given in total disregard of Section 199(2); and the impugned sanction had been accorded by total non-application of mind. The State Government represented by S.R. Rajagopalan, A.A.G, denied the petitioner’s argument of non- application of mind while according the sanction to prosecute the editors and the newspapers.

Perusing the arguments, the Court at length discussed various aspects of criminal defamation enumerated under Chapter XXI, Sections 499-502 of IPC and various Supreme Court decisions on the point. The Court observed that as per IPC, “the person charged for defamation must have the intention to harm the reputation of the person against whom words have been spoken or any article has been published by him.” The Court further noted that criminal defamation is a non-cognizable offence under the Criminal Procedure Code; and the only non-cognizable offence in the Indian Penal Code having a large number of exceptions to any offence which indicates the legislative intent to restrict the usage of the criminal defamation law. The Court went on to say that “State should not be impulsive like an ordinary citizen in defamation matters and invoke Section 199(2) CrPC to throttle democracy”. However, the Court also pointed out that media houses too have a responsibility to remove the decay that is slowly creeping into the way news is being reported or published. The Court finally concluded the judgment by allowing the writ petitions as none of the prosecutions fell under the category of Section 199(2) CrPC. [.Thiru N. Ram v. Union of India, 2020 SCC OnLine Mad 1023 , decided on 21-05-2020]

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J. has quashed the defamation case filed by V.V. Minerals (P) Ltd. against Economic Times and its reporter.

Facts

The respondent V.V. Minerals had instituted a defamation case against the petitioners ? Grievances Redressal Officer, the Editor, a reporter of the Economic Times and the husband of the reporter. As per the complaint, the offending publication appeared in the February 1-7 2015 issue of Economic Times Magazine titled “Scam on the Shores”. The article which was written by the 3rd petitioner ? Sandhya Ravishankar, a journalist working with the Economic Times, was based on a Public Interest Litigation (“PIL”) filed by one Victor Rajamanickam. According to the report, the T.N. Government had authorised the respondent to mine and export monazite which is a prescribed substance. To mine monazite, approval of Department of Atomic Energy is necessary. The report further claimed that on account of the enormous illegal mining, the local villagers have been exposed to serious health hazards.

The respondent controverted the allegations and issued notice pointing out that the husband of the said journalist (the 4th petitioner) had earlier applied for employment in a news channel in which the respondent is having substantial stakes and that his request was rejected. The respondent directly alleged that the journalist wrote the article out of hatred and malice and to settle scores with the complainant for having declined to employ her husband. The respondent lodged a complaint with the Judicial Magistrate, Thirunelveli, who found that prima facie, a case under Section 500 (punishment for defamation) read with Section 109 (punishment for abetment) of the Penal Code. was made out. Accordingly, he issued summons to the petitioner. Aggrieved, the petitioners approached the High Court under Section 482 CrPC (inherent powers of High Court).

Submissions

Anand Chandrasekar, counsel for the petitioners, relied on a host of precedents to contend that the proceedings against the petitioners deserve to be quashed. Per contra, V. Lakshminarayanan, counsel for the respondent, submitted that the offending publication is per se defamatory and that it has brought down respondent’s reputation and caused irreparable harm.

Two apparent errors

1. Improper description of Accused 1 & 2 (Petitioners 1 & 2 herein)

In the complaint filed by the respondent, Accused 1 & 2 were described only as the Grievance Redressal Officer, Economic Times & the Editor, Economic Times, respectively. They were described by posts and not by names. Referring to Section 476 read with Section 61 read with Form 1 of the Second Schedule, CrPC, the High Court restated that in a criminal case, where the accused is an individual, he/she will have to be named in person and if he is merely referred to by designation, the court ought to return the complaint as defective. Here, the trial Magistrate appeared to have acted mechanically while taking cognizance of the complaint without noticing the said defect. This apart, merely because the Grievance Redressal Officer could redress the respondent’s grievance, he cannot be accused of having committed an offence of defamation. 

2. Overstepping of territorial jurisdiction

Referring to Section 202 CrPC, the Court stated that a mere look at the cause title would have revealed that the accused are not residing within the jurisdictional limits of the Judicial Magistrate, Thirunelveli.

Wife ? an independent personality

The 4th petitioner (husband of the journalist, Petitioner 3) was roped on the sole ground that he abetted the offence. As per the complaint, the 3rd petitioner wrote the offending article at the instigation of her husband because he applied for a job in a news channel run be the respondent and his application was rejected. As per the Court:

“The 3rd petitioner is an independent freelance journalist. If I accept the contention of the complainant’s counsel, that would undermine the agency of the woman concerned. This concept of agency has considerable philosophical import and was evolved by the feminists during the last century. The complainant wants me to assume that the 3rd petitioner lacks personal autonomy. The 3rd petitioner definitely has the capacity to act independently and make her own free choice. I cannot assume that the 3rd petitioner was a pawn or tool at the hands of her husband. Her innate dignity can be upheld only by deleting the 4th petitioner from the array of accused.”

The Sullivan principle

The High Court referred to New York Times v. Sullivan, 376 US 254, wherein the Supreme Court of the United States noted the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. In order to survive, free speech needed breathing space – that is, the space to make mistakes. Erroneous statement was inevitable in free debate and therefore, the very existence of free debate required the protection of such statements. In that case, Justice Brennan propounded the test of “actual malice” wherein liability for defamation could be imposed only if the maker of the statement either knew it was false or published it with reckless disregard for its truth or falsity. On this, the High Court referred to the book “”Offend, Shock or Disturb” by Gautam Bhatia.

Criminal law of defamation involving the press ? clarified

The criminal law on defamation stands codified in Sections 499 and 500 IPC. Referring to the Second Exception (pubic conduct of public servants) and the Third Exception (conduct of any person touching any public question) to Section 499, the High Court clarified:

The Sullivan principle as amplified in Rajagopal v. J.Jayalalitha, AIR 2006 Mad 312, and Petronet Lng Ltd.v. Indian Petro Group, (2009) 158 DLT 759 (Del), have to be necessarily read into the Exceptions to Section 499 whenever the freedom of the press is involved. There can always be a margin of error. The permissible width of the margin will depend on the facts and circumstances of each case. The media can avail this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution.

The Court further explained:

“What must be seen is whether the subject matter is a public question or not. Exception 3 to Section 499 IPC refers to public question. Of course, the said expression has not been defined anywhere including the Law lexicons. But, one can safely understand it to mean an issue in which the public or the community at large has a stake or interest. Media ought to be relieved from any criminal prosecution once it is noted that its case falls within the Exception as delineated above.”

Duty of High Court in safeguarding the freedom of press

Referring to the decision in State of Madras v. V.G. Rao, AIR 1952 SC 196, where the Supreme Court described itself as sentinel on the qui vive, the High Court observed that the Court can never desert its duty when it comes to protecting the fundamental rights. The High Court stated that the observations of the Supreme Court will apply to the entire higher judiciary.

The Court then referred to the provision of Section 482 CrPC and observed:

“Most of the legal provisions conferring power are couched in a permissive language. But there is something called ethical imperative. It envisions that inherent powers go with implicit duties. Courts often nudge and remind the executive that possession of power is coupled with a duty to exercise the same. Judicial power can be no different. When freedom of press which is a fundamental right is at stake, higher judiciary is obliged to exercise not only its inherent power but also exert itself a bit. An unused power is a useless tinsel. There is no point in merely saying that press is the foundation of democracy.”

The Third Exception

The offending article was based on the allegations in a PIL filed in the Madras High Court against the respondent. Notably, the article contained the response of the respondent. Although there were a few mistakes in the reporting, but a clarification was later carried by Economic Times expressing regret. Also, it is true that the original petitioner turned out to have lacked bona fides and he was relieved from the proceedings, but the PIL was not terminated. It was converted into a suo motu PIL and the case is pending till date. It was noted that a Division Bench of the High Court is actively seized of the matter and this sufficiently indicates the importance of the issue raised in the offending article.

On such facts, it was held that this on the very face of it would fall within Exception 3 to Section 499. The Court observed that:

“When a defence can be established in a summary manner and does not warrant a regular trial, relief ought to be granted in a petition under Section 482 CrPC. As already pointed out, Petitioners 2 and 3 have shown their bona fides by reaching out Thiru.Vaikundarajan and publishing his response in the very same article.” 

Decision

In such view of the matter, the High Court held that the petitioners could not be said to have defamed the respondent by the article in question. The very institution of the impugned complaint was held to be an abuse of the process of court. Quashing the same alone would secure the ends of justice. Accordingly, the impugned proceedings against the petitioners were quashed. [Economic Times, v. V.V. Minerals (P) Ltd., 2020 SCC OnLine Mad 978 , decided on 5-5-2020]   

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J. granted anticipatory bail to the applicant accused of making false allegations against a particular religious group.

The appellant was booked by the Mumbai Police under Sections 295-A (outraging religious feelings), 499 (defamation), 500 (punishment for defamation), 504 (intentional insult with intent to provoke breach of the peace) and 505 (public mischief) of the Penal Code. The applicant had made a video clip making allegations that he was assaulted some members of Tablighi Jamaat and that they had spitted on him. According to the FIR, the allegations in this video were false and the applicant had deliberately made such allegations to hurt religious feelings and has caused rift in the society. 

Vishal Saxena, counsel for the applicant, submitted that the applicant has himself filed a non-cognizable case at the same police station and that he was being falsely implicated, to which APP S.V. Gavand sought time to file a detailed reply.

Considering the nature of allegations in the background of non-cognizable case filed by the applicant himself, at this stage, the Court was inclined to grant ad-interim relief to the applicant till the next date. 

Accordingly, it was ordered that in the event of the arrest of the applicant in connection with CR No. 170 of 2020 registered with Shahunagar Police Station, till the next date, the applicant is directed to be released on bail on his furnishing PR Bond in the sum of Rs 25,000.

The order was directed to remain in operation till 20-5-2020. The applicant shall attend the police station concerned as and when called and shall co-operate with the investigation. The matter is posted for 20-5-2020. [Abuzar Shaikh Abdul Kalam v. State of Maharashtra, 2020 SCC OnLine Bom 628 , decided on 27-4-2020]

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. was hearing a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter mentioned as CrPC) in the High Court of Judicature at Allahabad pertaining to the complaint filed by the petitioner. 

The petition has been filed by The Group Editor, The Local Editor, and The Press Reporter, Sahara India Mass Communication, Lucknow impugning the orders of summoning by Additional Chief Judicial Magistrate in Case No. 221 of 2010, Ramveer Upadhaiya v. Jaibrat Roy. The case was regarding a news article published by Rashtriya Sahara on 11-09-2009, based on a letter written by Mr Krishan Gopal on behalf of the Chief Minister to Mr J.N. Chamber and a subsequent letter to Mr Navneet Sehgal asking for inquiry over-demanding of Rupees 10 lakhs by respondent 2 (Minister) from Mr R.K. Kashyap, Chief Engineer, Western Electricity, failure in fulfillment of what led to his transfer and his suspension subsequently. Mr. Kashyap later in 2 letters denied allegations over the minister and withdrew his role in the letter writing. 

The petitioner submitted that the article published in ‘Rashtriya Sahara’ on 11-09-2009 was preceded by a similar kind of article published in daily Hindi newspaper ‘Deshbandhu’ and it contained statements made by several political leaders. Later, Mr O.P. Rai, on behalf of the complainant sent a letter to Rashtriya Sahara stating that Mr Kashyap has not given any complaint against the minister. The same was published on 22-10-2009.

The respondent submitted that the petitioners have published the aforesaid news item with an intention to malign the image and reputation of respondent 2 and of the State Government.

The Court held that it is the duty of the press to expose the government and its functionaries. If the press is put under the threat of prosecution, it can not perform its duty and thus the rights granted under Article 19(1)(a) of the Constitution of India is violated. And also the Court took note of the article published in another Hindi daily ‘Deshbandhu’ and if the newspaper had not published the article it would violate its duty. The Court also held that the complaint on behalf of the minister has should be filed through a Public Prosecutor in the Court of Session.

The Court opined that to constitute the offence of defamation under Section 499 of Penal Code, 1860 there has to be imputation, and it must have been made in the manner with intention of causing harm or having reason to believe that this imputation will harm the reputation of a person. It was held that the article is not defamatory and that the complaint is not maintainable before the Additional Chief Judicial Magistrate and hence the petition is allowed. [Ranvijay Singh v. State of Uttar Pradesh, Case No. 284 of 2013, decided on 20-12-2019]

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., addressed the matter with respect to a complaint filed regarding defaming the respondent in the name of human sacrifice.

Applicants invoked the powers of the Court under Section 482 CrPC and under Article 226 and 227 of the Constitution of India for quashing the proceeding lodged by Respondent 2 for the offence punishable under Section 500 of the Penal Code, 1860 in respect of the news item published in their newspaper ‘Lokmat’.

It has been noted that Respondent 2 filed a complaint in the Chief Judicial Magistrate’s Court, wherein he alleged that in ‘Lokmat’ a news item was published under the caption ‘Narbali cha pryatna’ (Attempt at Human Sacrifice) with a sub-heading ‘Jalu Ghramsthanrnche Madtine Vachale Balkache Pran’ (A Child survives death scare because of alertness of Jalu Villagers). Further, Respondent 2 along with 10 members of his organisation were taken to the police station and despite keeping them in the police station, police failed to find any evidence against them.

The above stated was done with a view to harming the respondent’s organisations reputation and respondent’s reputation as well. The result of this was that the respondent was defamed and his reputation was put a stake. Thereafter, he sent a notice to the applicants demanding particulars on the basis of which news item was published. However, applicants did not respond to the same and therefore were liable to be punished.

Contentions

Satyajit S. Bora, Advocate representing the applicant’s submitted that what was published in the newspaper was merely a report about the incident and no opinion was expressed. Thus it was truthful reporting of an incident.  Respondent 2 along with his associates were found moving in the village as a group with a boy named in the news item and villagers suspected that the child was being carried for sacrifice and one human skull was found.

For the above-stated, villagers assaulted them and took them to the police station. The matter was inquired by  Sub-Inspector and on verification, it was transpired that it was a matter of misunderstanding.  They were all proceeding for a party but since it was being held in a field the villagers perceived that it was some attempt at a human sacrifice. It is thus quite clear that it was a sheer misunderstanding and the news item was in infact a truthful disclosure of the happenings.

“Complaint is devoid of any allegations that the applicants were harbouring some grudge against respondent 2 and his associates and had published the news item to settle some score much less intending to harm his reputation.”

It was further submitted that, since it turned out to be a factually correct reporting, no further inquiry was required and it would fall under First Exception to Section 499 which saves such true publication of a news item made in public good and was done in good faith and would also fall under Ninth Exception, since the news was published in good faith for the protection of public at large and since it was seriously thought to be a case of human sacrifice.

Learned Advocate for Respondent 2 submitted that, applicants could have merely reported the matter instead of mentioning the names of the persons, even if it was a fact that they were accosted by the villagers and were taken to the police station. If really the applicants were having some bona fides they should have waited for things to be clarified by the police. The fact that the news was published without any verification is demonstrative of the fact that they had not acted in good faith.  The facts prima facie make out a case of defamation and cannot be said to be an abuse of process of law so as to quash and set aside the complaint itself.

Conclusion of the Court

One can easily attribute knowledge of the consequences of publication of such news item containing grave imputations.

The High Court while noting the above stated facts and submissions of the parties, stated that one need not delve much in this aspect and the contents of the news item indeed can easily be said to have lower the reputation of the Respondent 1 in the esteems of others and the knowledge of such consequence can easily be imputable to the persons who have published the news.

Further, relying on the case of Sewakram Sobhani v. R.K. Karanjia, (1981) 3 SCC 208, wherein it was held that,

“Journalist do not enjoy some kind of special privilege or have greater freedom than others to make imputation or allegations, sufficient to ruin the reputation of a citizen.”

Further, it was stated that, the truth of an allegation does not permit a justification under the First exception unless it is proved to be in public good.

“..without intending to traverse the jurisdiction of the Magistrate to inquire into and decide the issue, publishing names of the respondent no.2 and his associates in a news item which could have been published by deleting the names is indeed a material circumstance which will have to be borne in mind by the Magistrate during the trial.”

In High Court’s opinion, the publication of the item which has the potential of putting Respondent 2  to disrepute and to lower him in the esteems of the others is prima facie sufficient to constitute defamation as defined under Section 499 of Penal Code, 1860 and the doors cannot be shut at threshold.

The bench also opined that the Court has demonstrated above as to how prima facie there is material to show the offence of defamation having been committed. Chairman and Chief Editor do not have any direct role and responsibility in publishing the news item.

Thus the criminal Application was partly allowed. [Vijay Jawaharlalji Darda v. State of Maharashtra, 2019 SCC OnLine Bom 2634, decided on 04-10-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. held that the continuation of criminal proceedings for the offence of defamation against an advocate who acted professionally as per the instructions of his client was nothing but abuse of process of Court.

The petitioner was an Advocate having standing of more than 45 years at the Bar in District Court, Jagdalpur (Bastar). He drafted a plaint on behalf of one Madhuri Pandey, daughter of late Ghanshyam Pandey, for declaration of title, confirmation of possession and permanent injunction against one Pratibha Pandey (hereinafter, the complainant). In the plaint, she was referred to as “concubine” of Ghanshyam Pandey. She filed a complaint against the petitioner and other alleging that she was the widow of Ghanshyam Pandey and not her concubine. She prayed for appropriate action or damage to her reputation.

The precise question for consideration of the Court was: Whether an Advocate, while acting under the instructions of his client and proceeding professionally, can be prosecuted/punished for the offence of defamation punishable under Section 500 IPC?

Rahul Tamaskar, Advocate for the petitioner contended that the petitioner was acting strictly in performance of his professional duty and he enjoyed privilege while acting as such. Chandresh Shrivastav, Deputy Advocate General, submitted that the present petition deserved to be dismissed. Punit Ruparel, Advocate submitted that the petitioner ignored the Duty to Opponent prescribed under Bar Council of India Rules.

The High Court was of the view that the petitioner was liable to be given the benefit of the ninth exception (imputation made in good faith by person for protection of his or others interests) to Section 499 (defamation) IPC. It was noted that the petitioner drafted the plaint on the basis of instructions provided by his client, the plaintiff. Referring to a plethora of Judicial Precedents, the High Court held: “an advocate, who acted professionally as per instructions of his/her client, cannot be made criminally liable for the offence of defamation under Section 500 IPC unless the contrary is alleged and established.” Finding the petitioner’s act to be bona fide, it was said: “As such, imputation was made in good faith and on the basis of instructions of his client in order to protect her right to property which she is claiming, as right to property is a constitutional right under Article 300A of the Constitution of India and therefore does not constitute the offence of defamation under Section 499 punishable under Section 500 and falls within the Ninth Exception to Section 499.”

In such view of the matter, the criminal proceedings pending against the petitioner before the Court of Chief Judicial Magistrate, Jabalpur was quashed.[Arun Thakur v. State of Chhattisgarh, 2019 SCC OnLine Chh 51, decided on 10-05-2019]