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TMI Blog2016 (12) TMI 1774X X X X Extracts X X X X X X X X Extracts X X X X ..... errorist squad, had collected assets in the region of Rs. 250 crores. In the process, the Lokayukta discussed the details of the raid on the properties belonging to the complainant situate in Mumbai, Kolhapur and Belgaum. The press statement issued by the Lokayukta was widely reported the very next day in a number of prominent national as well as local newspapers, like Indian Express, Hindu, Times of India etc. 3. Sakal Newspaper, which is a Marathi newspaper also carried and published this news item. Kolhapur edition of this newspaper dated 19th March, 2009 records the version of the Lokayukta. Likewise, statements given by the Lokayukta also appeared in Belgaum, Pune, Nasik and Aurangabad editions of Sakal newspaper. 4. Kolhapur edition also carried out another separate news item under the caption 'Rich from Silver and Elephant Teeth Smuggling'. Under this news item, it was, inter alia, mentioned that the complainant had collected money from silver and elephant teeth smuggling which came to the knowledge of the newspaper from reliable sources. Description was also given about his modest background leading very ordinary life during his tenure as the student and amassing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Newspaper and Mr. Pratap Rao Govind Rao Pawar (hereinafter referred to as the 'A-2), Chairman of this group of Newspapers (who incidentally is father of Abhijit Pawar) were also arrayed as accused persons. In the complaint A-1 Abhijit Pawar is described generally as "Managing Director Editor of Sakal Papers Ltd.". He is also described as Printer and Publisher of Pune edition. Under statutory declaration, he is described a Printer and Publisher of the Pune edition. A-2 is described as Chairman of Sakal Papers Ltd. A-3 to A-6 are described as editors of various editions. A-3, Navneet Deshpande, is described as Executive Editor of Pune edition and Accused No. 5 Yamaji Malkar as editor for Pune edition. 6. Verification in respect of this complaint was carried out on 17th November, 2009 wherein A-1 is described as 'Managing Director and Editor' of Sakal. After recording of the aforesaid verification statement of the complainant, the Chief Judicial Magistrate, Kolhapur, i.e., the trial court issued process against all the accused persons on 24th November, 2009. Being aggrieved by the said order of issuance of process, all the accused persons challenged that order by filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year 2005 whereby special provision was made mandating due care to be taken by the Magistrate in respect of those persons residing at a place beyond the area in which the Magistrate exercises his jurisdiction, to ensure that innocent persons are not harassed by unscrupulous persons. It was pointed out that this was avowed objective behind this amendment specifically noted and explained by this Court in National Bank of Oman v. Barakara Abdul Aziz (2013) 2 SCC 488. Some more judgments in support of the aforesaid arguments were also referred to, which will be taken note of at the appropriate stage. (ii) Second argument of the Appellant was that there is no vicarious liability in criminal defamation and a person can be held liable only for his own act where he has the necessary mens rea, i.e., criminal mind. It was submitted that A-1 was, in fact, placed in the same position as A-2 and, therefore, the High Court should have quashed the process against A-1 as well, on the parity of reasoning adopted in the case of A-2. To buttress this submission, the learned Counsel took aid of the judgment of this Court in Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial about this publication, to attract any vicarious liability. Referring to the judgment in the case of Ramesh Chand Aggarwal v. State of Haryana and Anr. Crl. Misc. No. 30154/2010; Dtd. 22.12.2011 by Punjab and Haryana High Court at Chandigarh, it was argued that the court held that if a person is not shown to be as 'editor', no presumption can be drawn. It needs a positive assertion of knowledge of the objectionable character of the matter and that it is published with his consent. In the aforesaid case, the petition of printer and publisher had been allowed. The matter came to this Court and the Court held that there were no legal and valid grounds for interference. The learned Counsel also placed reliance on K.M. Mathews v. K.A. Abraham (2002) 6 SCC 670. (iv) It was lastly submitted that such kind of prosecutions were totally untenable, misusing and abusing the process of law deterring persons from exercising their fundamental right to Freedom of Speech guaranteed Under Article 19(1)(a) of the Constitution. It was emphasised that this freedom has to be jealously guarded and protected when it comes to freedom of Press. Submission was that in the present case, a sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused persons in publishing the story about the complainant in the newspaper wherein serious libelous and defamatory allegations were made about the integrity of the complainant which included the allegations that the complainant had amassed ill-gotten wealth and richness from silver and elephant teeth smuggling. According to the learned senior Counsel, these stories published in the newspaper, which were independent and in addition to the statements made by the Lokayukta, damaged the reputation of the complainant thereby lowering his image in the society. The learned Counsel further submitted that another offending act on the part of the accused persons which come within the mischief of libel was publication of the editorial under the caption 'Police "Dog" Millionaire'. It was argued that right to freedom of speech or freedom of Press for that matter, does not extend to defaming or maligning the reputation of a person by publishing mischievously damaging and frivolous material. If that is done with intent to tarnish the image of the targeted person, it becomes an actionable claim under civil law as well as criminal law. 13. Adverting to contention of the complainant b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of general public to such news reports. Therefore, it could not be said that the learned Magistrate had not applied his mind to the relevant material which was documentary in nature and, thus, there was no legal infirmity whatsoever. It was submitted that no doubt amendment of Section 202 Code of Criminal Procedure makes it obligatory for the Learned Magistrate to hold an enquiry into the allegations in the complaint and other relevant materials. However, in the defamation matter, issuance of process after having examination of defamatory material with reaction of the public, would certainly be sufficient to satisfy the test of holding the enquiry Under Section 202, Code of Criminal Procedure. 15. The learned Counsel accepted the object of amendment of Section 202 Code of Criminal Procedure is stated to be to avoid harassment or unnecessary inconvenience to the innocent persons. However, according to him such alleged harassment is neither a hypothetical situation, nor it is mere legal submission, if the accused person feels harassment by an order of issuance of process then it is expected that he would complain against such unjust harassment without any delay and in any case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations but the publication was with their active consent. According to the learned Counsel the offence was committed when in Kolhapur edition the news were published by the local editor who is also impleaded as an accused in the proceedings and also in the internet edition 'eSakal'. Under Section 177 read with Section 178, the offence is triable where act is done or consequence ensues. In this case, not only the act is done at Kolhapur but the consequence also has followed at Kolhapur. The complainant is a permanent resident of Kolhapur. What is triable is the offence and not the accused. The accused suffers the sentence or punishment as a result of the trial wherever situated. 19. In the instant case even otherwise where there are six accused and four of them have not questioned the process after the criminal revision, the trial could not be segregated by the Chief Judicial Magistrate. In this behalf, it was emphatically argued that Sakal Papers Ltd., is a private limited company, owned and managed by said accused, runs a Marathi Daily newspaper styled as "Sakal", and, an internet edition known as the 'eSakal'. The news to all these print editions and internet edi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 of the Code of Criminal Procedure was amended in the year by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment. The essence and purpose of this amendment has been captured by this Court in Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC 638 in the following words: 11. Section 202 of the Code, inter alia, contemplates postponement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torial jurisdiction of the Magistrate. 23. For this reason, the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. This requirement is emphasised by this Court in a recent judgment Mehmood Ul Rehman v. Khazir Mohammad Tunda (2016) 1 SCC (Cri.) 124 in the following words: 20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd.. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess is, therefore, not an empty formality. What kind of 'enquiry' is needed under this provision has also been explained in Vijay Dhanuka (2014) 14 SCC 638 case, which is reproduced hereunder: 14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated Under Section 202 of the Code. The word "inquiry" has been defined Under Section 2(g) of the Code, the same reads as follows: 2. (g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court; It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided Under Section 202 of the Code. In the inquiry envisaged Under Section 202 of the Code, the witnesses are examined whereas Under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kumar Jagad; [ (2011) 12 SCC 695]. 29. We may like to record that though Mr. Bhatt had refuted the arguments founded on Section 202 of Code of Criminal Procedure, even he had submitted that in case this Court is satisfied that mandatory requirement of Section 202 is not fulfilled by the learned Magistrate before issuing the process, this Court can direct the Magistrate to do so, Mr. Bhatt, for this purpose, referred to the judgment in the case of the National Bank of Oman (2013) 2 SCC 488. 30. For the aforesaid reasons, Criminal Appeal arising out of SLP (Crl) No. 9318 of 2012 is allowed thereby quashing the notice dated 24th November, 2009 in respect of A-1 with direction to the learned Magistrate to take up the matter afresh qua A-1 and pass necessary orders as are permissible in law, after following the procedure contained in Section 202, Code of Criminal Procedure. 31. Insofar as appeal filed by the complainant discharging A-2 is concerned, the High Court has quashed the notice on the ground that he is only shown as Chairman and is not shown to be actually associated with the publication of the newspaper. Since, we are relegating the matter insofar as A-1 is concerned, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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