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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 ..... n on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. 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. Appeal allowed. - Criminal Appeal No. 1225 of 2016 (Arising out of SLP (Crl.) No. 9318 of 2012) and Crl. Appeal No. 1226 of 2016 (Arising out of SLP (Crl.) No. 9860 of 2012) - - - Dated:- 14-12-2016 - A.K. Sikri and Abhay Manohar Sapre, JJ. For the Appellant : Ashok Desai, Sidharth Luthra, V. Giri, R.P. Bhatt, Sr. Advs., Shyel Trehan, Hitesh Jain, Himanie Katoch, Akshita Sachdea, Liz Mathew, Vijay Kumar, Shrikrishna R. Ganbawale, Vishwajit Singh, Bheem Pratap Singh, Nishant Ramakantrao Katneshwarkar and Makarand D. Adkar, Advs. For the Respondent : None JUDGMENT A.K. Sikri, J. 1. Leave granted. 2. On 18th March, 2009, a police squad working under the Lokayukta of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but insofar as the complainant is concerned, it was mystifying story that one boy in the middle class family becomes IPS Officer and collects property worth ₹ 250 crores within eight to ten years. The particulars of the properties acquired by the complainant with their value were mentioned and the editorial also highlighted increase in crime in white collar high class persons with no limit of corruption. To the similar effect were the news published in E-editorial of this newspaper. According to the complainant, the news was very offensive and contained libelous satire against him generally, and in particular in the following lines: Much discussion was held on the word Dog in the name of movie but in police machinery there are many such dogs and they are likelihood of dog and such is situation. The one who should protect law they have become eater becoming violating and this is not new to this country. The roots of corruption and bribe are deep rooted from Delhi to all over in small lanes also. There is no fear of law. From this it is clear that corruption is becoming social mannerism. 5. The complainant, feeling agitated by the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed. 8. It is in this backdrop that A-1 has filed the Criminal Appeal arising out of Special Leave Petition (Criminal) No. 9318 of 2012. 9. Against that part of the order of the High Court by which proceedings against A-2 have been quashed, it is the complainant who has come up to this Court by filing Criminal Appeal arising out of Special Leave Petition (Crl.) No. 9860 of 2012. 10. Mr. Ashok Desai and Mr. Sidharth Luthra, learned senior Counsel appearing for A-1 have made four-fold submissions while questioning the order of issuance of process passed by the trial court which is affirmed by the High Court. These are: (i) Provisions of (Cr.P.C.) are ignored and not complied with by the trial court while issuing the process. It is submitted that the procedure stipulated in the said provision is mandatory which imposes an obligation on the Magistrate to ensure that before summoning an accused, who resides beyond his jurisdiction, the Magistrate shall make necessary inquiries into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the responsibility on the person who is declared as 'editor' in the prescribed format under the said Act and making the said declared editor responsible for these acts. It was submitted that Section 2(1) of the Press Act defines 'Editor' and as per the provisions of the Section, such a declaration is prima facie evidence in any legal proceedings, whether civil or criminal, about the person on whom the responsibility for the wrongful civil or criminal can be foisted upon. It was argued that besides the editor, other persons like the printer or publisher of a newspaper cannot be held liable for the wrongful acts, more particularly, when it comes to criminal prosecution. Otherwise, it would create a chilling effect in the freedom of speech. In this hue, it was submitted that Section 7, which talks of declaration to be prima facie evidence in any legal proceedings, whether whatever civil or criminal, only refers to a presumption that the declaration is sufficient evidence about the person who is shown to have certain status as a printer and/or publisher to be regarded as a printer and/or editor or publisher. This is a rebuttable presumption and, in any case, it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is contemplating legal course of action to seek justice against the false statements made by Lokayukta, the Sakal publications as a matter of law, and also their public duty as journalists, have a right and obligation to publish the statement and even comment on the same. It was pointed out that the complainant had instituted a civil defamation case against Justice Hegde wherein he also impleaded the representatives of The Hindu, The Times of India, Deccan Herald, New Indian Express, Deccan Chronicle, Vijaya Karnataka, Kannad Prabha, Prajavani, Udayvani, Sanyukta Karnataka. That civil suit itself has been dismissed on 28th June, 2010 as frivolous, with costs, with the observations of the Court that it appeared that the Plaintiff had filed the said suit in order to gain cheap publicity in an attempt to overcome the serious allegations made in criminal case against him. The learned Counsel placed heavy reliance on a recent judgment of this Court in Subramanian Swamy's case wherein there is a copious discussion of the law relating to the Freedom of Speech and Expression enjoyed by the Press. 12. Mr. Bhatt, learned senior Counsel appearing on behalf of complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e local editors include the news circulated by Pune coordinating office, known as Sakal News Service, manned and controlled by the accused Nos. 1 and 2 and the important news, particularly the news which invites the risk of legal proceedings, for such a publication are usually brought to the notice of the accused and thereafter they are circulated to different editors. c) The accused have nurtured some grudge against the Respondent No. 1 and are interested in defaming the Respondent No. 1. d) The accused No. 2 Rules the management of Sakal News Paper in the capacity of Chairman of Company and the Accused No. 1 being the son of Accused No. 2 are both interest in increasing the sale of the newspaper, the profits of which, go to Sakal Papers Ltd. e) On 19.3.2009 the Sakal News Service i.e. Sakal Vrutta Seva at its head office situated at Pune, transmitted to all the places for publication a news item at page 49 of SLP Paper Book (Do we need to write page No. of SLP Paper Book?), indicating that Respondent No. 1 had amassed ₹ 250 crores illegally, clearly with an intention to defame the Respondent No. 1. Additional defamatory news were published by Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry has to do this only with reference to the intrinsic quality of the statements made before him and the inquiry which would naturally mean the complaint itself, the statement on oath made by the complainant, and, the statements made before him by persons examined at the instance of the complaint. In the facts of the present case, all the defamatory news articles published in the print editions of Sakal and the internet edition eSakal were placed before the Learned Magistrate and based on this material process was issued. 17. Various judgments were cited in support of the proposition that satisfaction of the Magistrate, while issuing the process, Is to be confined to the issue as to whether prima facie case is made out against the accused and not sufficient ground for securing his conviction. The learned Counsel also argued that A-1 and A-2 had not even raised any contention regarding amended provision of Section 202 of Code of Criminal Procedure at any stage earlier and this argument was raised for the first time before the High Court. 18. Mr. Bhatt, further submitted that it was also misconceived on the part of the accused persons to argue that they were not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of their design to defame the complainant, have published the defamatory news through the newspaper controlled by their company Sakal Papers Ltd. The defamatory news items have been published with concurrence of the accused in various editions for a period of over six months to gain profits by selling them and hence the ingredients of Sections 500, 501, 502 read with Section 34 of the Indian Penal Code are satisfied. 20. We have considered the respective submissions of the counsel for the parties. In these proceedings, we are not concerned with the issue as to whether impugned publications make out a case for offence under the aforesaid provisions of the Indian Penal Code? Since the learned Magistrate has issued the process qua four editors as well, apart from A-1 and A-2, we proceed with the assumption that prima facie case is made out against the said editors. The question is as to whether the learned Magistrate adopted correct procedure while issuing notice to A-1 and A-2 as well. 21. Basic facts which need to be recapitulated for deciding this issue are that A-1 is the Managing Director of Sakal newspapers whereas A-2 is the Chairman of the Company. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory or not. 12. The words and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows: False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this Clause seeks to amend Sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. The use of the expression shall prima facie makes the inquiry or the investigation, as the case may be, by the Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed Under Section 203 Code of Criminal Procedure when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation Under Section 202 Code of Criminal Procedure, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused Under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of complaint, affidavit of advocate who had translated the FIR into English etc. the operative portion reads as under: On considering facts on record, it appears that complainant has made out prima facie case against the accused for, the offences punishable Under Sections 500, 501, 50 (sic 500) read with 34 of the Indian Penal Code. Hence issue process against the accused for the above offences returnable on 23.12.2009. Case be registered as Summary Case. 26. Insofar as, these two accused persons are concerned there is no enquiry of the nature enumerated in Section 202, Code of Criminal Procedure. 27. The Learned Magistrate did not look into the matter keeping in view the provisions of Section 7 of the Press Act and applying his mind whether there is any declaration qua these two persons under the said Act and, if not, on what basis they are to be proceeded with along with the editors. Application of mind on this aspect was necessary. It is made clear that this Court is not suggesting that these two accused persons cannot be proceeded with at all only because of absence of their names in the declaration under Press Act. What is emphasised is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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