Leading judgment on defamation by publication in Newspaper

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.


IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NOS.10/2011 AND 47/2012
CRIMINAL WRIT PETITION NO.10/2011
1. Shri Dilip Babasaheb Londhe,

Vs.
STATE (Through P.P.)

Sanatan Sanstha,

CORAM :- R. C. CHAVAN, J.

Pronounced on :- 21th August, 2013
Citation; 2013 ALL M R(CRI)4302

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
The petitioner in Criminal Writ Petition No.47/2012 is
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
500 I.P.C. that
individual and
the purpose of an offence under S.
the person defamed must
that the prosecuting
be an
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
intending to harm, or knowing
any person
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
WPCR10-11&47-12
... 10 ...
that there could be defamation
person
such.
and
of
an
individual
also of a collection of persons as
The contention
reduces itself to
the
for
the appellant then
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.
persons must
of
course,
that
collection
of
be identifiable in the sense that
one could, with certainty, say that this group of
particular
people
distinguished from
has
been
defamed,
as
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
WPCR10-11&47-12
... 11 ...
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
WPCR10-11&47-12
... 12 ...
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
defamatory
the
magazine
against
the
are
alleged
Marwari
to
be
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
WPCR10-11&47-12
... 13 ...
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
WPCR10-11&47-12
... 14 ...
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 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.
In Vishwa Nath V. Shambhu Nath; 1995 CRI. L.J.
15.
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
WPCR10-11&47-12
... 18 ...
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,
WPCR10-11&47-12
... 19 ...
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
respondent nor did it contain
mention
any
the
defamatory
imputation against him individually. Sec. 499 of the
Penal Code,
that
which defines defamation, laid down
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
individual an
defamation
in respect of 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
WPCR10-11&47-12
... 20 ...
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
complaint even if
the
that
class
can
file
a
defamatory imputation in
question does not mention him by name.”
18.
for
Again on the question as to who could file complaint
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.
Section 499 of the IPC reads thus:
Explanation 2 in
WPCR10-11&47-12
... 21 ...
"Explanation 2.- It may amount to defamation
to make an imputation concerning a company or an
association or collection of persons as such."
11.
be
In view of the said Explanation, it cannot
disputed
that
a
publication
containing
defamatory imputations as against a company would
escape
from
defamation.
the
If
purview
the
of
defamation
the
offence
pertains
to
of
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
WPCR10-11&47-12
... 22 ...
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, 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
WPCR10-11&47-12
... 23 ...
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, 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.
news
The learned Counsel further submitted that the
published
was
a
correct
picture
of
complainant, and even if there is some excess,
affairs
of
the
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, 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
WPCR10-11&47-12
... 27 ...
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
therefore,
taking
it
cognizance.
cannot
be
said
In our opinion,
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
WPCR10-11&47-12
... 28 ...
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
WPCR10-11&47-12
... 29 ...
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
WPCR10-11&47-12
... 30 ...
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
WPCR10-11&47-12
... 31 ...
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
WPCR10-11&47-12
... 32 ...
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
WPCR10-11&47-12
... 33 ...
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, 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, 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, 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 Ahmad3. ......
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, 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
WPCR10-11&47-12
... 38 ...
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, 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
WPCR10-11&47-12
... 39 ...
Editor Vs. State of Maharashtra and another; 2003 Bom.
C.R. (Cri.) 1653,
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
WPCR10-11&47-12
... 40 ...
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 ALLMR (Cri) 2509, where this High Court,
WPCR10-11&47-12
... 41 ...
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; 2001 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,
WPCR10-11&47-12
... 42 ...
and had held that process could not have been issued in the facts
unfolded.
In Sanatan Sanstha Vs. State of Goa and anr.
43.
2007(1) BCR (Cri.)865, the Court held as under :
“18. The essence of offence of defamation is the
harm
caused
Character
is
to
the
what
a
reputation
person
of
a
actually
person.
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
temporarily
criticise
the
conducting
ministers
the
who are
of the
affairs
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
WPCR10-11&47-12
... 46 ...
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
WPCR10-11&47-12
... 47 ...
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
WPCR10-11&47-12
... 48 ...
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
WPCR10-11&47-12
... 49 ...
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
(Dnyanesh
Maharao
Vs.
Sanathan
Sanstha), a learned Single Judge of this Court held on facts as
under :
“4.
in
Copies
of
defamatory
articles
published
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
WPCR10-11&47-12
... 50 ...
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; 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
WPCR10-11&47-12
... 53 ...
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
WPCR10-11&47-12
... 54 ...
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 answering the above
question as under :
In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV
WPCR10-11&47-12
... 55 ...
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
WPCR10-11&47-12
... 56 ...
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, 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
WPCR10-11&47-12
... 60 ...
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 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
WPCR10-11&47-12
... 61 ...
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, on which the learned Counsel for Lokmat newspaper
WPCR10-11&47-12
... 62 ...
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.”
In Punjab National Bank & Ors. V/s. Surendra
58.
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.”
In Mohit alias Sonu and another V. State of U.P.
59.
and another; 2013 AIR SCW 3926, 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
WPCR10-11&47-12
... 63 ...
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
challenged.”
60.
order
impugned
can
be
(emphasis supplied)
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,
WPCR10-11&47-12
... 64 ...
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
WPCR10-11&47-12
... 65 ...
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
WPCR10-11&47-12
... 66 ...
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.
In H. K. Dua V. Chander Mohan, Deputy Chief
62.
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
newspaper.
of
The
the
matter
word
published
"Chief
in
Editor"
a
is
WPCR10-11&47-12
... 67 ...
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.
R. C. CHAVAN, J.