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TMI Blog2009 (6) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... ces punishable under section 500 and 501 of the Indian Penal Code. The present applicants have been arraigned as accused nos.2 to 4. There was a revision application filed by the 1st applicant (2nd accused) for challenging the order of issue of process. There were separate revision applications filed by the 2nd and 3rd applicants (accused Nos.3 and 5) for challenging the order of issue of process. Another revision application was also filed by the 1st respondentcomplainant for challenging an order by which the complaint was dismissed as against the accused no.1. The revision applications were heard together and by a common judgment and order dated14th August 2001, the revision applications preferred by the applicants herein were rejected. The learned Sessions Judge allowed the revision application filed by the 1st respondentcomplainant by directing that process shall be also issued against accused no.1 under section 500 of the Indian Penal Code. 3. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the averments made in the complaint filed by the 1st respondent. The 1st respondent claims to be a Publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the 1st respondent was nothing but a branch of the Rashtriya Swayanseva Sangh and further stated that Mr.Nitin Gadkari, the leader of the opposition in Vidhan Parishad was connected with the establishment of the 1st respondent. The newspaper report further records that the accused no.1 was present in the celebration of Platinum Jubilee of Bhau Masurkar and he stated that institutions like the 1st respondent have been adversely affecting the nation and said institutions are encouraging extremists. In the complaint other news items published in newspapers other than daily Loksatta have been reproduced which are not relevant for the purposes of this application. 5. The allegation made in the complaint is that the accused no.1 made a defamatory statements intentionally to harm the reputation of the 1st respondent. The allegation in the complaint is that the applicants and other accused published the said defamatory statements of the 1st respondent in their respective newspapers knowingly or having reason to believe that such imputation will harm the reputation of the 1st respondent-complainant. It was contended that the said statements made by the accused no.1 which were pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant is a limited company and the 3rd applicant is the name of the printing press of the 2nd applicant and the 3rd applicant is not a legal entity. He submitted that existence of mens rea is essential ingredient of the offence under section 499 of the Indian Penal Code and therefore the said offence cannot be alleged as against the 2nd and 3rd applicants in as much as the 2nd applicant is a limited company and 3rd applicant is the name of the press of the 2nd applicant-company. He pointed out that the 1st respondent has not proceeded against any of the officers of the 2nd applicant and only the 2nd applicant as a company has been arraigned as an accused. On this aspect he has relied upon certain decisions, a reference to which has been made in the subsequent part of this decision. 8. The learned counsel appearing for the 1st respondent invited my attention to sub-section 3 of section 397 of the said Code. He submitted that in substance this is a second revision application by the applicants and therefore considering the mandate of sub-section 3 of section 397, this application cannot be entertained. He submitted that at the stage of issuing process what is required to be seen i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infact the case is that the accused no.1 indeed made utterances which are reproduced in the news item dated 06th May 2000. At this stage it will be necessary to refer to the averments made in paragraph 5 of the complaint in which the 1st respondent-complainant has asserted that the applicants published the defamatory statements in their newspaper knowing or having reason to believe that such imputation will harm reputation of the complainant. The verification statement has been recorded in Marathi. The official translation of the verification statement has been annexed to the petition. The translated version of the verification statement reads thus: VERIFICATION I, Dr. Nandini Durgesh Samant, age 33 years, Occupation-Medical Profession, residing at-Fonda, Goa, State-Goa, state on solemn affirmation as under:- The Hon ble Minister Shri Hussain Dalwai was present at the Platinum Jubilee function of most revered Bhau Masurkar held on the date 1st May, 2000 at Sawantwadi. Thereafter, while speaking to the reporters at the Rest House, he made the statements which are derogatory to the Sanstha. The statements are- 1) The Sanatan Sanstha is a branch of Rashtriya Swayansevak Sangh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Criminal Procedure, a Magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or an information otherwise received. Where a complaint is presented before him, he can under section 200 take cognizance of the offence made out therein and has then to examine the complaint and the witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vaxatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. ... (Emphasis added) 13. It wil be also necessary to refer the decision of the Apex Court in case of Sabitha Ramamurthy Anr. Vs. R.B.S. Channabasavaradhya [(2006) 10 Supreme Court Cases 581)]. While dealing with the section 200 of the Code of Criminal Procedure,1973. The Apex Court has observed thus : ... In terms of section 200 of the Code of Criminal Procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igned by the authorised representative of the complainant as is clear from the xerox copy of the certified copy of the complaint annexed to this application. Therefore, the verification statment of the authorised representative of the first respondent complainant was the only statement on oath available on record of the complaint. In absence of even a reference to the news item published by the applicants and in absence of the reference to the role of applicants in the verification statement, the learned Magistrate could not have issued process against the applicants and hence impugned order as against the applicants is illegal. The learned counsel for the first respondent invited my attention to the decision of this court in case of Amarnath (spura) and submitted that as done by this court in the said case, an order of remand be passed to enable the learned Magistrate to record proper verification statement of the representative of the complainant. Perusal of the said decision of this court shows that the said course was adopted in the peculiar facts of the case before this court. This Court in the said case was dealing with a writ petition filed for challenging the order of issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in good faith. The learned counsel for the first respondent was justified in contending that this contention raised by the applicants is nothing but the defence of the applicants which cannot be considered at this stage. It must be stated that there is a merit in the submission of the learned counsel for the first respondent-complainant that the question whether the news item is published in a bonafide manner or not will have to be decided at the time of trial. However, no further discussion on this question is necessary as order of process is required to be set aside on the ground discussed earlier. 17. The third submission made by the learned senior counsel for the applicant was based on the decision of Calcutta High Court in case of Zee Telefilms Ltd Vs. M/s. Sahara India Commercial Corporation Ltd Anr. (MANU/WB/0033/2001). Reliance was placed on paragraph 9 of the said decision which reads thus : 9. In the penal code also there is no provision which makes a company or an association of persons liable for prosecution for the offences of which mens rea is one of the essential ingredients. In this situation and in view of the aforesaid decision of the Apex Court, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h knowledge or reasonable belief that such imputation would harm the reputation of a person against whom it was directed. .... (Emphasis added) This court has clearly held that to attract section 499, mens rea is required. However, as stated earlier, no further discussion is required on this aspect as only on the basis of first submission the applicants must succeed. 19. Lastly, it will be necessary to refer the contention raised by the learned counsel for the 1st respondent based on the provisions of sub section 3 of section 397 of the said code of 1973. The submission was that the bar created by sub section 3 of section 397 cannot be defeated by the applicants by taking recourse to section 482 of the Code of Criminal Code, 1973 as a remedy of filing revision has already been exhausted by the applicants and second revision application is not maintainable. The said contention cannot be accepted as the law laid down by the Apex Court is to the contrary. In the case of State Through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru Ors [(2003) (6) Supreme Court Cases 641], the Apex Court had an occasion to deal with this aspect. The Apex Court after considering the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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