Criminal

In controversy as to whether the material complained of is defamatory or not, the Court will first decide, as a question of law [ RHC]

RAJASTHAN HIGH COURT

SINGLE BENCH

( Before : K.S. Sidhu, J. )

SECRETARY, N.C.E.R.T. — Appellant

Vs.

DR. P. D. BHATNAGAR — Respondent

Criminal Misc. Application No. 217 of 1979 Against the order of Judicial Magistrate, Ajmer dated 19-7-1979 passed in case No. 74 of 1979 (77 of 1979)

Decided on : 22-01-1980

Counsel for Appearing Parties

V.S. Dave and A.K. Sharma, Advocates, for the Petitioners; Amrit Kumar, Advocate, for the non-petitioners

JUDGMENT

K. S. Sidhu, J.—The two petitions listed above filed under section 482 Cr. P. C. arise out of two complaints under section 500 I. P. C. pending before two different judicial magistrates, one in the district of Ajmer and the other in Bharatpur. Besides the Secretary, National Council of Educational Research and Training. New Delhi (for short the N. C. E. R. T.), all other petitioners 24 in number including Principal Wanchoo, a Professor and several Readers were members of the Faculty of Regional College of Education, Ajmer, at the material time. The complainant in one case is P. D. Bhatnagar who was himself a Professor in the same college. The complainant in the second case is Shiv Kumar who was a Junior Research Fellow in the said College at the relevant time.

2. P. D. Bhatnagar filed his complaint on the allegations that there were serious differences between him and the petitioners relating to discipline and other College affairs creating bad blood on both sides. Giving instances of matters which created the differences, he mentioned that he did not approve of hosting of drink parties and taking of alcoholic drinks by some of the petitioners at the campus of the college. He had also differences with the petitioners over what he described as bungling in internal assessment and arbitrary stoppage of scholarships of the students. In August, 1977, the students of the college went on a strike. Shri Nathu Singb, a Member of Parliament and Shri Onkar Singh Lakhawat, a lawyer member of the Janta Party visited the college and tried to sort out these problems. The petitioners and some other members of the Faculty published a date wise account of the events of the strike containing what complainant Bhatnagar considers defamatory accusations against him. The passages in the said document to which Bhatnagar has taken particular exception may be reproduced here as follows : –

1. All wrong, deceitful, derogatory and malicious informations were fed to Shri Singh (Nathu Singh) through leading and instigating questions by Dr. Bhatnagar. Students were directed to narrate their demands and grievances. Some of the false and malicious description like drinking parties by staff members with ladies, tape recording and black-mailing of ladies were narrated to him through leading questions asked by Dr. Bhatnagar.

2. He (i.e. Dr. Bhatnagar) was continuously whispering something to the students which instigated them more and they began to shout at Mr. Wanchoo.

…Then Dr. Bhatnagar addressed the students alone. After sometime some outsiders beat some college students on a different issue but Dr. Bhatnagar and Mr. Bhartiya told the students that Mr. Wanchoo had hired outside Gundas to beat the college students.

3. Dr. Bhatnagar warned Principal Wanchoo to get prepared for the worst from his (Dr. Bhatnagar’s) side.

4. The meeting continued against rowdyism aggressive behaviour and abusive languages on the part of the students even in the presence of Dr. Bhatnagar and Shri Bhartiya.

5. Dr. P. D. Bhatnagar & R.K. Bhartiya losing their tempers very often and instigating students.

6. When these people started moving at about 6-00 p. m. there was a cry from behind “Acting Principal” by Dr. P. D. Bhatnagar. There was shout by Dr. P. D. Bhatnagar, “Do not leave him, get hold of him, but M/s Dr. Dave, Dr. Panda. Ramakrishna anu Balbeer Singh ran away. A few blows also fell on the back of Dr. Panda and Shri Ramkrishna.

Thank God that the gate near the PBX was not closed by the students. It was a narrow escape.

3. Bhatnagar filed the complaint against petitioners on July 3, 1979 after a lapse of nearly two years from the date of occurrence. Explaining the delay, he pleaded that it was only on June 28, 1979 when he came to know that the petitioners were the authors of the objectionable documents which had been submitted by them to the authorities in N. C. E. R. T. and other important people under their own signatures. He mentioned in passing that a departmental enquiry had been instituted against him by the N. C. E. R. T. on the basis of the said document and that the Inquiry Officer had supplied to him, along with the charge-sheet, a true copy of that document on June 28, 1979. That is how he came to know that the petitioners had published this document.

4. Shiv Kumar filed his complaint against the same petitioners on August 3, 1979. He mentioned there in that the petitioners had animosity against him because he opposed drinking parties and taking of alcoholic drinks by them on the campus of the college. He also stated that he had been the leader of the striking students who opposed what he described as bundling in internal assessment marks and arbitrary stoppage of scholarships of the students. His complaint in respect of the aforementioned signed document, containing a date-wise account of the events of the strike is confined to the following passages : –

1. During their talk, the students led by Shri Shiv Kumar, J. R. F. stormed-into the office of the Principal with the students. These students were forcibly taken out of their classes by the said J. R. F. In the presence of the honourable guest they (including Shiv Kumar) began to abuse the Principal and accuse him of various injustices……………

2. At one stage students like Subhash Sangwan, Gunvir Singh, Hiralal, Lakhmi Cant and JRF Shiv Kumar jumped at Mr. S. P. Ram, the Senior Most Reader of the college using the most abusive and offensive language. Because of the presence of some staff members he was saved. All this goondaism took place in the presence of Dr. Bhatnagar and Shri Bhartiya.

3. Inspite of Mr. (Onkar Singh) Lakhawat’s requests, the students under the leadership of Shiv Kumar left the room shouting slogans in abusive languages.

Another document to which he took exception is said to have been issued by the petitioners, under the “Unacademic and restrictive Activities of Dr.P.D, Bhatnagar on September 14, 1977. The alleged objectionable passage may be reproduced here : –

1. That during 1975-76 above mentioned Shiv Kumar was admitted to one year B. Ed. Science. Another Shiv Kumar of Hapur (U. P.) gave legal notice to the Principal, Relational College and Vice Chancellor Rajasthan University stating that this Shiv Kumar (J. R. F.) had impersonated him in 1975 July, and got admitted to the Regional College. The test mark sheets reached Shiv Kumar of Hapur. There appears to have been sufficient evidence with the college to this effect.

2. That on 5.9.77 he alongwith Shiv Kumar (J. R. F.) and A. S. Bedi student were seen standing at three exit doors of Rajasthan Vidhan Sabha Jaipur and distributing an unsigned cyclostyled paper to the Vidhayaks. The cyclostyled paper contained false and fabricated statements and show an ideal exercise in Yellow Journalism.

3. That Dr. P. D. Bhatnagar, J. R. F. Shiv Kumar and student A. S. Bhati were seen standing at the exit doors of Jaipur Vidhan Sabha and distributing an unsigned Hindi cyclostyle sheet an ideal exercise in Yellow Journalism to the Vidhayuks as and when they emerged out on behalf of H. C. F. student.

It is alleged that the petitioners sent the aforementioned defamatory documents to Shri Bachani and Shri Tara Chand, M. L. C. These documents were also delivered to Shri Pradumusan and Shri Daulat Ram Sharma, residents of Bharatpur. According to Shiv Kumar the imputation contained in these documents brought him down in the esteem of residents of Bharatpur.

5. Like P. D. Bhatnagar the other complainant, Shiv Kumar pleaded that he could not take legal action against the petitioners earlier in the absence of a signed copy being made available to him. P. D. Bhatnagar met Shiv Kumar at Bharatpur on August 2, 1979 and brought to his notice a photostat copy of the signed document containing the alleged defamatory material.

6. After examining the complainant and recording the statement of one Hari Singh by way of inquiry, the learned Judicial Magistrate, Ajmer passed an order dated July 19, 1979 issuing process against all the 25 petitioners summoning them to face proceedings in his court under section 500 I. P. C. Similarly, the Bharatpur Magistrate, who took cognizance of the complaint of Shiv Kumar passed an order dated August 17, 1979 issuing process against as many as 20 members of the Faculty summoning them to stand trial under section 500 I. P. C.

7. Most of the accused in both the complaints are common. They filed the present petition under section 482 Cr. P. C. challenging the process issued against them by the Judicial Magistrate, Ajmer and Judicial Magistrate, Bharatpur vide orders dated July 19, 1979 and August 17, 1979 respectively. This Court admitted these petitions on September 19, 1979 and further directed that the proceedings in both the courts below shall remain stayed till further orders.

8. Section 482 Cr. P. C., under which these two petitions purport to have been filed deals with the inherent powers of the High Court. It lays down inter alia that nothing contained in the said Code, shall be deemed to limit or affect the inherent powers of the High Court to prevent the abuse of the process of any court, or otherwise to secure the ends of justice. I have examined the record and heard learned counsel on both sides at considerable length with a view to ascertaining, if by issue of process against the petitioners the learned Magistrates have permitted abuse of the process of their courts resulting in manifest failure of justice and therefore warranting interference by this Court in the exercise of its inherent powers under section 482 Cr. P. C. I am constrained to say that this question must be answered in the affirmative. The impugned orders, issuing process against the petitioners under section 204 Cr. P. C. therefore, deserve to be quashed and, instead, the two complainant deserve to be dismissed under section 203 Cr. P. C. Reasons for this opinion may be stated as follows : –

9. Section 499 I. P. C. which deals with the offence of defamation defies the offence with the aid of four Explanations and ten Exceptions with more Explanations and Illustrations appended to the Exceptions. We may read here the main definition and Explanation 4 which are relevant for decision of these petitions. They are as under:

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.

Explanation – 4 : No imputation is said to harm a person’s reputation, unless that 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.

The essential ingredients of the offence of defamation therefore, are : – (1) making or publishing any imputation concerning any person (2) such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations and (3) such imputation must have been made with the intention to harm or with the knowledge or having reason to believe that it will harm the reputation of that person. The first and foremost question which a court dealing with criminal prosecution involving the offence of defamation must, therefore, answer is whether the alleged material described as defamatory amounts to imputation within the meaning of this expression as used in Section 499. Imputation ordinarily implies an accusation. Imputation or accusation alone will not suffice. To constitute the offence of defamation, the prosecutor will have to prove that the imputation or accusation was made with an intention or knowledge or belief as mentioned in ingredient 3 above. A person is not guilty of defamation by making the imputation or accusation unless he intends to harm or knows or has reason to believe that thereby he would harm the reputation of another person. In other words an imputation or accusation simplicity without proof of requisite intention, knowledge or belief as covered by ingredient 3 of the definition will not constitute the offence of defamation.

10. The question whether an imputation or accusation is defamatory or not is a mixed question of law and fact. If there is a controversy as to whether the material complained of is defamatory or not, the Court will first have to decide, as a question of law. as to whether the said material is capable of being understood in a defamatory sense. If the court decides this question in the affirmative, it will then, and then only, proceed to determine whether, the said material containing a defamatory potential had in fact harmed the reputation of the complainant, within the ambit of the definition of such harm as given in Explanation 4. If the material is defamatory parse, for example, where the accused imputed commission of a felonious crime to the complainant, there is no difficulty in deciding the question of law mentioned above. The court will at once answer it saying that the imputation of commission of felony by the defendant is capable of being understood in no other but a defamatory sense. In such a situation, the court would be justified in straight away taking the parties to evidence with a view to determining as a question of fact, whether the said imputation had harmed the reputation of the complainant within the four corners of Explanation 4. If on the other hand, the words of the alleged imputation are ambiguous, it becomes a question of some difficulty for the court to decide whether those words are capable of being understood in a defamatory sense. If the court decides in the context of a particular complaint that the words in question are reasonably capable of bearing a defamatory meaning, it is only thereafter that it will address itself to the question of fact regarding harm to the reputation of the complainant.

11. In issuing process against the petitioners on the complaints of P. D. Bhatnagar and Shiv Kumar, respectively, the learned Magistrates appear to have been influenced mainly by the evidence of certain witnesses who appeared before them in the inquiry under Section 202 Cr. P. C. and gave evidence to the effect that the publications in question had harmed the reputation of the complainants in their estimation. Before considering the question as to whether the publications in question had in fact harmed the reputation of the complainants in the estimation of others, it was incumbent upon the learned Magistrates to determine, as a question of law, as to whether the said publications were capable at all of being understood in a defamatory sense by the right thinking members of the society. The learned Magistrates did not approach and appreciate the problem from that angle. They did not consider this question at all, much less answer it.

12. Let us, therefore, find out as to whether the publications in question were capable of being understood in a defamatory sense by reasonable members of the society generally. As already stated, the complainants themselves admitted in the text of their complaints that there were serious difference between them on one side and the petitioners on the other relating to discipline and other college affairs. Such difference had created bad blood on both sides. They mentioned in this context that they opposed drinking parties and taking of alcoholic drinks by some of the petitioner on the campus of the college. Shiv Kumar, the complainant in the second complaint, even admitted that he had led the students to strike over what he described as bungling in assessment marks and arbitrary stoppage of scholarships of the students. P. D. Bhatanagar, who is the complainant in the first complaint, admitted that, on a complaint being made by the petitioners to the authorities in the N.C.E.R.T. a departmental inquiry was instituted against him by the s aid authorities on the basis of the allegations contained in the said complaint. The enquiry was still pending when he rushed to file the criminal complaint against the petitioners, describing the allegations in the petitioners’ complaint against him to the N. C. E. R. T. authorities as defamatory. Now, if we size up the petitioners’ complaint in the back ground of the complainants’ allegations to the effect that some of the petitioners were guilty taking alcoholic drinks in the company of lady members of the Faculty on the campus of the college and also of bungling in the assessment of marks, the petitioners’ complaint will emerge as a relatively restrained and disciplined effort on their part in vindication of Their own conduct as member of the Faculty vis-a-vis the conduct of the complainants as such. For example, P. D. Bhatnagar, complaints that the petitioners used snarl words like “wrong, deceitful, derogatory and malicious'” m relation to the leading questions which Bhatnagar is alleged to have out to the striking students in the presence of Shri Nathu Singh, Member of Parliament, to convince the latter that some of the petitioners were in the habit of taking alcoholic drinks and hosting drink parties with lady members of the Faculty as guest on the campus of the college. This material could not be understood by any right thinking man in a defamatory sense. A person who knows that the complaints have been opposed to the petitioners because the former do not approve of the alleged taking of alcoholic drinks and hosting of drink parties by the petitioners on the campus of the college is not likely to hold the complainants in any lover esteem by reason of the fact that they tried to expose the petitioners by putting leading questions to the students about such parties in the presence of Shri Nathu Singh.

13. Similarly imputations produced at Nos. 2, 3, 4, 5 and 6 in paragraph 2 of this judgment are not reasonably capable of being construed in a defamatory sense in the context of the situation of contention between the complainants on one side and the petitioners on the other in the Regional College of Education, Ajmer, brought about by the complainants themselves. It must be remembered that in every case the court is required to decide whether or not such words are reasonably capable of bearing defamatory meaning in the particular circumstances in which they have been published. Having regard to the fact that both the complainants have tried to justify the strike by the students in the Regional College of Education, Ajmer, by blaming it on the petitioners, the court cannot possibly adjudge the allegations of the complainants contained in Nos. 2, 3, 4,5, and 6 aforementioned as reasonably capable of bearing a defamatory meaning.

14. The observations made above in relation to the complaint of P. D. Bhatnagar apply with equal force to the complaint of Shiv Kumar against the petitioners. Shiv Kumar made an allegation in his complaint that he was compelled to lead the striking students because he opposed the drinking parties and taking of alcoholic drinks by the petitioners on the campus of the college and he did not like what he described as bungling in internal assessment of marks and arbitrary stoppage of scholarships of the students. It these are his own accusations against the petitioners, he cannot be heard complaining if the petitioners tried to defend themselves by complaining to the authorities in the N. C. E. R. T. that the complainant had stormed into the office of the Principal, along with the students, and abused the Principal. The allegation of the petitioners in their complaint to the authorities in the N. C. E. R.T. that acts of gundaism took plea in the college in the presence of complainants cannot by any means be described as defamatory. The petitioners’ allegation that one Shiv Kumar of Hapur, a name-shake of complainant Shiv Kumar, had served a legal notice on the Principal of the Regional College of Education, Ajmer, and the Vice Chancellor of the Rajasthan University, Jaipur, stating that complainant Shiv Kumar had impersonated him in the year 1975 and thus got admission to the Regional College, Ajmer, is also not defamatory. It is whit maybe described as a bare statement of fact If some one has served a baseless of bogus notice on the Principal of the College and the Vice Chancellor of the University of Rajasthan, it cannot possibly defend Shiv Kumar in the estimation of those, who know that he is not an impostor. It is significant to note that Shiv Kumar himself has not committed in any manner as to whether the notice is bogus, baseless or what.

15. The other material alleged to be defamatory in Shiv Kumar’s complaint is also of similar nature. The petitioners who are members of the Faculty of the Regional College of Education, Ajmer, were placed in such a difficult situation as a result of the allegations made against them by the two complainants that they were left with no option but to bring the whole matter to the notice of the authorities in N. C. E. R. T. for rectification of the situation and redressal of their grievances against the complainants. It is obvious that when they wrote to the N. C. E. R. T. authorities under their own signatures their only purpose, as they explained in their covering letter to the said authorities, was to bring the facts to their notice so that the sanctity of the cause of education and norms of discipline, decorum and decency of academic life could be protected. No defamatory intention knowledge or belief can reasonably be attributed to the petitioners from the communications complained of as defamatory.

16. For all these reasons, I have no hesitation in holding that none of the publications complained of is reasonably capable of bearing a defamatory meaning in the particular circumstances in which they were published. That .being so, it would-quite clearly amount to an abuse of process of the court if the complainants are permitted to subject as many as 25 members of the Faculty of the Regional College of Education, Ajmer to the inconvenience and expenses of what is bound to be a long and tortuous trial. I must therefore interfere in the matter in the exercise of the inherent powers of this Court to rectify the error committed by the learned Magistrate in issuing the process against the petitioners. Consequently, allow the two petitions set said the impugned orders and instead dismiss the two complaints under section 283 Cr. P. C.


(1980) 5 RajCriC 392