CIVIL

Publishing scurrilous and defamatory articles in newspaper is not the job of a journalist [BHC]

The role of the journalist is far more noble. The media is called the fourth estate. But this type of misuse of the fourth estate is really deplorable. Once upon a time, journalists like Lokmanya Bal Gangadhar Tilak used this media for awakening the conscience of the people during the British Raj and for social, political and other worthy causes. Right to information is a fundamental right of the people, but this type of yellow journalism has to be condemned and those who resort to this type of cheap publicity and those who use their newspaper for blowing their own trumpet or for condemning and defaming others should be condemned themselves by the people. Using temperate, restrained and sophisticated language, which is at the same time effective and reaches and touches the soul of those who read it, is the key of success in the field of journalism. There are very few, who are endowed with these qualities. Newspapers like ‘Janhit’ and ‘Agman’ may be small newspapers. They are being circulated in a small town. They should aim at providing necessary and correct information and news-items to the people, to make them literate and more informative, so that they become aware as to what is going on around them.

(1999) ALLMR(Cri) 355 : (1999) 5 BCR 398 : (1999) 5 BomCR(Cri) 398 : (1999) CriLJ 1754 : (1999) 2 ECrC 245

BOMBAY HIGH COURT

SINGLE BENCH

( Before : Pratibha Upasani, J )

SHRI DNYANDEVRAO TATYRAV WAGHMODE — Appellant

Vs.

ALLABAKSHA GULAB NADAF AND OTHERS — Respondent

Criminal Revision Application No. 42 of 1992 with Criminal Appeal No. 395 of 1997

Decided on : 15-01-1999

Penal Code, 1860 (IPC) – Section 499, Section 501, Section 502

Penal Code, 1860 (IPC)-Section 499 – Defamation – Allegations of publishing defamatory article with respect to complainant made against accused an editor, owner and publisher of Newspaper – Gutter language used in article – Same was published with malicious motive to malign and damage reputation of complainant – Complainant himself was a journalist and a social worker – Accused rightly held guilty for offence of defamation – Sentence till rising of Court and fine of Rs. 500/- – Is too low and too inadequate compared to damage caused to reputation of complainant – Sentence therefore enhanced to fine of Rs. 10,000/-.

Cases Referred

M.P. Narayana Pillai and Others Vs. M.P. Chacko and Another, (1986) CriLJ 2002
Counsel for Appearing Parties

A.P. Mundari and K.B. Sonwalkar, Mrs. Usha Kejariwal and R.Y. Mirza, Addl. P.P, for the Appellant;

ORDER

Dr. Mrs. Pratibha Upasani, J.—This Criminal Revision Application along with Criminal Appeal will be disposed of by this common judgment and order.

2. Criminal Revision Application No. 42 of 1992, which was converted from Criminal Appeal No. 49 of 1992, is filed by the petitioner (original complainant), being aggrieved by the judgment and order dated 9th December 1991, passed by the Judicial Magistrate, First Class, Miraj convicting accused No. 1 (respondent No. 1 in the Revision Application) and acquitting accused No. 2 of the offences punishable u/s 501 and 502 of the Indian Penal Code. By the impugned order, the Judicial Magistrate, First Class, Miraj, sentenced accused No. 1, Allabaksh Gulab Nadaf to suffer S.I. till rising of the Court and to pay a fine of Rs. 500/-, in default, to suffer further S.I. for 8 days, under both the counts. The original complainant/ petitioner is dissatisfied with this impugned order. His grievance is that, the sentence awarded to accused No. 1 viz., respondent No. 1, is grossly inadequate and low since he has been merged and tarnished the reputation of the complainant to an unimaginable extent. As far as accused No. 2’s acquittal is concerned, the complainant does not seem to have any grievance because it is stated by Mr. Mundargi, appearing for the complainant that he is not pressing for conviction of accused No. 2 since he is just a poor vendor boy. However, as far as accused No. 1 is concerned, the complainant’s indignation is very high and the complainant appearing to be fuming and fretting for the publication of the allegedly obscene and vulgar material published by accused No. 1 in his weekly newspaper ‘Agman’, which is published at Miraj.

3. Few facts which are relevant and hence required to be stated are as follows :

It is the case of the complainant Dyandevrao Tatyarao Waghmode that he is the Editor, Printer, Publisher and owner of the weekly newspaper ‘Janhit’ and stays at Miraj. He was also a Councillor of the Miraj Municipal Council and was the founder and Vice-President of Jawahar High School. He is the office bearer of Jay Maharashtra Credit Society. He is also the office bearer of Patrakar Sanghatana and other social and educational institutions.

4. It is further the case of the complainant that respondent No. 1 Allabaksh Gulab Nadaf is the Printer and he is connected with the weekly ‘Agman’ in which the said respondent No. 1, on 14-5-1982 and 21-5-1982, published two highly defamatory items with respect of the complainant, lowering his to image in the eyes of the public. According to the complainant, these two articles are defamatory and the allegations which are made, are scandalous, scurrilous and are untrue to the knowledge of the petitioner and are made maliciously with least regard for the reputation of the petitioner in the society. On publication of these articles in the paper ‘Agman’, the public at large, read these defamatory articles and being aggrieved, the complainant filed a complaint under sections 501 and 502 of the Indian Penal Code in the Court of the Judicial Magistrate, who issued process against respondent No. 1, viz., the Editor, publisher and owner of the said newspaper and respondent No. 2, who sold the newspaper on the street by shouting the head lines loudly and the contents of the newspaper items concerned.

5. The learned Magistrate, as the case was the warrant case, recorded the evidence of the complainant before charge. The complainant examined himself and five other witnesses. The complainant narrated the defamatory and scurrilous items published by accused No. 1 in his newspaper. The translations of the defamatory statements published by accused No. 1 as taken from the judgment of the lower Court are as follows :

“READ THE

1. WAGHMODYA IN THE SKIRT OF KOKILA.

2. People go to heaven or hell after death, but Waghmodya who is alive after having applied dust on his face, is living in hell.

3. Keeping relation with the mother, her daughters Dyanoba Dyandoba.”

“4. Every Sunday between 10 to 12 and 3 to 6 p.m. he spent his time in a room on the third floor with woman and wine.

5. How the berserk tiger entered into the bed sheet of his elder daughter-in-law.

6. Why and how the wife of Dnonya lost her head?

7. Whether Ramya is son of his father or a compositer.

8. Ramya had dropped his under-wear running away while he was having intercourse with prostitute on arrival of police at Railway booking office.

9. Horoscope of (Ramya) who had received heavy beating from goondas. All these items will appear in the next issue in the form of news, prose and poetry.”

“21-5-1982 Agman

1. Opposite Miraj Police Station 2 gambling clubs of Waghmodya, police are called upon to close them otherwise a morcha will be taken.

Miraj : At a distance of 50 ft. from City Police Station in the premises of Waghmodya two gambling dens are doing business, day and night and police should raid the clubs, demand by the citizen. In the Miraj Police Station there are offices of Dy. S.P. More, C.P.I. Malsure, and 4 P.S.I. Even then these clubs are carrying on their activities. If police will not take action and close the clubs a morcha will be taken to the police station and police will be forced to close the club. Police may take warning that for any consequences Miraj Police Department will be responsible, said the citizen.”

One Citizen

“2. Leukoderma

Moving shield and Rs. 51/- reward to Waghmodya, white patcher. Put turban on the face of Waghmodya and asked him to stand at Kisan Chowk, Rs. 51/- cash award 6 kg. red earth and moving shield.

You, Leukoderma Waghmodya, if you want more money take part in the race of A.G. Nadaf. If you came to Kisan Chowk, after removing your turban, cut your hair in Ashok Kumar Style, after having bath with water mixed with potassium permanganate and Shikakai Dye your beard on white colour, without socks or boot, without coat or shirt only on underwear (without socks or boot, without coat or shirt only on underwear (without underwear will also do) and present yourself before people, you will get prasad of chappals of having iron shoes, lashes, dipped in final .You will get Rs. 51/- in 500 monthly installments till you are alive with a drum of tar for colouring your beard and a moving shield from No. 2 people.”

“3. EDITOR OF JANHIT

Enquiry from Income Tax officers about the properties of Dyndeo Waghmodya. Editor of Weekly Janhit is publishing it from Miraj, sometime to earn money. A person who has got a simple press has earned lot of money illegally without having any business, 2/4 buildings, 8-10 Flats, and cash balance in the bank account. How he procured this estate. All though he is paying Income Tax, citizen demanded inquiry by Income Tax and C.I.D. to inquire from where and how he got the said estate.

BATKYA WAGHMODYA WHY YOU ARE APPLYING DUST TO YOUR FACE :

Here, a 65 years old Waghmodya got marks due to beatings by sandals of God and thereby got Leukoderma on his body. He is using red-clothes right from his turban to boots, read coat, red shirt, red turban red handkerchief brought from Jat and thereby tries to shield his white-patches. He keep long hair like woman to conceal the” “head-tumer which is due to hit of God’s sandal but he could not do so. This 65 years old man is pretending to be young by dying his beard and wearing goggles.

4. Read the lesson on Dnyanoba a wild pig who eats cream by sending his woman to sleep with others.

1. Waghmodya is sending his wife to Jatkar.

2. Jatkar who provided him with livelihood is not recognised by him as his father and this how Dnyanoba is made by alloy of five metals.

3. Ramya eats butter of the live corpse, drinker who licks m.c. of prostitute.

4. Ramya make his wife to sleep in S.T. and A.G. Nadaf work on her and the bastard Dnyanya witnesses this.”

“5. Waghmodya, who is on the way to become a leprosy patient should die in the room on 3rd floor like a orphan because he has raped a handicapped girl and beautiful wife of Ramya.

6. A.G. Nadaf drops water on wife and daughter-in-law of Waghmodya.

7. He has made his own daughter pregnant and then aborted, such a pig is Dnyanya.

8. Dnyanoba and Ramya have no support from others but earn money through daughter-in-law, misappropriate deposits of poor people from housing societies and by running a club near police station and keeping illicit relations with Hindu and Muslim women by black-mailing them and this is Leukoderma Waghmodya.

9. For a small stomach and small penny he sends his mother, sister, daughter, sister in law and daughter in law to Premnagar for business. This Waghmodya is doing this in Maharashtra, to earn brokerage for getting flat, for getting permission to construct building from Municipality, working as pimp” “for number two, pimp for daughter in law and daughter, will die of leprosy -Waghmodya Dnayana.

10. Ramya is begotton from whose semen. Matkawala, gambler, illicit-country liquor vendor, Jatwala, leader or from the semen of ass.

11. One Panwali had hit chappals on his eye dipped in stool, the woman beat him with chappal and kokila urinated on his head and barbar Mahale passed stool on his face, the bastard for his own pleasure got married to a women of Jatkar and earn money on her. He is biggest two number dacoit – Waghmodya.

12. He eats cream of prostitutes. Extract money from doctor by threatening them. The doors of heals are opened for him. Soon he will be a leprosy patient. Hence in the hutments opposite S.T. Workshop his Kavji will be carried out.”

“13. Will not forget the rainy day in the entire life, one beautiful woman, wife of Ramya, will be remembered by us.

14. Waghmodya himself sends his daughter in law and daughter for gamblers.

15. Whether Ramya is son of Dnyanoba or Jatkar.

16. When Ramya is under influence of liquor had A.G. Nadaf entered the bedsheet of daughter in law of Dnyanoba.

17. How wife of Ramya come into clutches of A.G. Nadaf and how further episode took place.

18. On the chest of Kokila during the day Ramya and at night Waghmodya.

19. Waghmodya has kept eye on money of Panwali whereas Ramya, on her breast.

20. Why elder daughter in law of Waghmodya ran away to Kolhapur.”

“21. A.G. Nadaf is in Kisan Chowk, after spreading the bed wild-bore Dnyanoba and Ramya come at any time. I am ready for you or your sisters, daughter in law and daughter either during the day or night.

22. Ramya is born out of semen of Jatkar.

23. Ramya’s wife and daughter in law of Dnyanoba have illicit relations with the club customers.

24. Dnyanoba has got no value in the Danghar caste.

6. SON OF GOAT WAGHMODE

One person : What is the meaning of son of Goat? Another : Those who have sexual relations with his own mother or the daughter is called son of Goat like Ramya and Dnyanoba.

7. Waghmodya has love affair with the women from handicapped school?”

“The person who think himself learned and spit on other, in spite of showing himself as honest person Waghmode has love affair with a sweeper woman from handicapped school at Fort. In the night he loves, the women and during the day, with her daughter (Their names will be published in the next issue) once in the Fort at night while Waghmodya was entering the room of woman the dogs in the lane were sent at him and the people of fort took out his photograph and gave good beatings to him. Waghmodya ran away holding his dhoti. He is having relations with mother and daughter by threatening them. Similarly, Kokila from Brahmanpuri, Panwali, Champa from hutment were also subjected to affairs by Waghmodya by threatening them.

8. Dnyanoba made pregnant his own handicapped daughter and thereafter aborted.

Dnyanoba raped his own handicapped daughter. Hence, he was thrown out from his house. His wife has lost her head. After having sex with handicapped daughter and after she came pregnant Dnyanoba, a wild dog”

“Ramya, got aborted from doctor, who had no degree. However, inspite of this they show the relation of father and daughter, Women drove them away by beating with chappals.”

6. This is the English Translation which is found in the proceedings and the original Marathi material is at pages 10 to 14 of the Paper-Book.

7. The language of this publication with respect to the complaint is the dirtiest gutter language, which is absolutely scurrilous, defamatory and vulgar. In nut shell, the publication states that the complainant is having leprosy and he has white patches all over his body. It is further allegedly published in his newspaper by accused No. 1 that the complainant keeps sexual relationship with his mother, daughter, daughter-in-law and some other women of the city. It is further published that he is sending his wife to one Jatkar, who provides him with livelihood; that the complaint is a wild pig; that Ramya eats butter of the live corpse; that he has made his own daughter pregnant and got her aborted; that his elder daughter-in-law ran away to Kolhapur; that he is a son of goat, etc. etc.

8. The translator must have found it an extremely difficult task to translate the original Marathi material into English that is published in the newspaper ‘Agman’ allegedly by accused No. 1. The full impact of the scandalous nature of the material which is published is felt, after reading the original, which is in Marathi.

9. The learned Magistrate, after recording evidence and after going through and appreciating the nature of evidence on record, came to the conclusion that the prosecution has succeeded in proving, beyond reasonable doubt, that accused No. 1, on 14th May 1982 and also on 21st May 1982 published and printed defamatory matters in his weekly newspaper ‘Agman’ under the head and title, “Read the matter of ‘Bhangad’ of Dnyanoba” and published defamatory paragraphs in both the issues with respect to the complainant with a knowledge that such imputation would harm the reputation of the complainant and his family members and thereby committed an offence punishable u/s 501 of the Indian Penal Code. He also gave a finding that the prosecution proved beyond reasonable doubt that at the same time accused No. 1 offered for sale the said newspapers containing the above defamatory matter and had circulated the papers in Miraj city and all over Sangli and thereby committed an offence punishable u/s 502 of the Indian Penal Code.

10. I have heard Mr. Mundargi, appearing for the original complainant and Mr. Sonwalkar for accused No. 1 at length. I have also perused the proceedings, especially the impugned order of the learned Magistrate, dated 9th December 1991. It is a well reasoned judgment, wherein the learned Magistrate has discussed the evidence of all the witnesses and has given cogent reasons for arriving at the findings given by him.

11. The defence of accused No. 1 is that he has not published those articles on 14th May 1982 and 21st May 1982. However, after proper marshalling and appreciating the evidence on record, the learned Magistrate came to the conclusion that accused No. 1 in fact, was the editor, owner and publisher of the said newspaper ‘Agman’ and that he was the person, who had published those defamatory articles with respect to the complainant. He has given categorical finding that the language of the articles was obscene, vulgar and defamatory. If one goes through the articles, there cannot be a second opinion about it. As rightly submitted by Mr. Mundargi, the language used is indeed a “gutter language” and the articles are published with malicious motive to malign and damage the reputation of the complainant, who also happens to be a journalist and a social worker.

12. In order to bring defamatory imputation within the meaning of section 499 of the Indian Penal Code, ill-will or malice on the part of the writer or publisher is not necessary to be proved. The complainant also need not prove that he suffered on account of the publication. It is enough if it is shown that the accused intended or knew or at least had reason to believe that the defamatory imputation made by him would harm the reputation of the complaint. M.P. Narayana Pillai and Others Vs. M.P. Chacko and Another, . In the present case at hand, the learned Magistrate was fully justified in coming to the finding of guilt as far as accused No. 1 is concerned.

13. It appears that there seems to be some business rivalry between the complainant and accused No. 1. While the complainant is the publisher and owner of the newspaper by name ‘Janhit’, accused No. 1 is the publisher, owner and editor of the newspaper ‘Agman’. However, it is not proper that accused No. 1 should use the medium of his newspaper for the character assassination of the complainant. He might be having some axe to grind against the complainant, but to publish scurrilous and defamatory articles in the newspaper is not the job of the journalist. The role of the journalist is far more noble. The media is called the fourth estate. But this type of misuse of the fourth estate is really deplorable. Once upon a time, journalists like Lokmanya Bal Gangadhar Tilak used this media for awakening the conscience of the people during the British Raj and for social, political and other worthy causes. Right to information is a fundamental right of the people, but this type of yellow journalism has to be condemned and those who resort to this type of cheap publicity and those who use their newspaper for blowing their own trumpet or for condemning and defaming others should be condemned themselves by the people. Using temperate, restrained and sophisticated language, which is at the same time effective and reaches and touches the soul of those who read it, is the key of success in the field of journalism. There are very few, who are endowed with these qualities. Newspapers like ‘Janhit’ and ‘Agman’ may be small newspapers. They are being circulated in a small town. They should aim at providing necessary and correct information and news-items to the people, to make them literate and more informative, so that they become aware as to what is going on around them.

14. Accused No. 1 used his newspaper ‘Agman’ to spit venom on the complainant. He lowered the reputation of the complainant in the eyes of everyone in the society. The learned Magistrate, though he recorded the finding of guilt, convicted him but sentenced him to suffer S.I. only till rising of the Court and to pay a fine of Rs. 500/-.

15. I am in agreement with the submissions made by Mr. Mundargi, who is appearing for applicant/complainant. The sentence is too low and too inadequate compared to the damage which has been caused to the reputation of the complainant. One shudders while reading the entire material which is utterly scurrilous, defamatory and vulgar. Certainly the learned Magistrate ought- to have passed a more deterrent sentence of imprisonment and the fine amount also should have been substantial. The reasoning given by the learned Magistrate is very much convincing and it cannot be said that the judgment is perverse or unreasonable, but as far as the quantum of sentence is concerned, I am of the opinion that he has not done justice to the complainant and has been too lenient as far as accused No. 1 is concerned. Since the incident took place some time in 1982 and a period of about 15 to 16 years has passed, I do not think that any useful purpose will be served by sentencing accused No. 1 to imprisonment. I am informed that accused No. 1 is an old person. However, he must feel the pinch as far as the amount of fine is concerned, so that it will make him a responsible journalist. The object of the punishment is reformative as well as deterrent. In my opinion, this object will be achieved by enhancing the amount of fine which will be ordered to be paid to the complainant. Not that by paying any amount of money, the damage which has caused to the reputation of the complainant will be wiped out or obliterated. Loss of life and loss of reputation are two things which can never be compensated in terms of money; Especially reputation is something which is a person’s treasure. However, as observed earlier, to make accused feel some pinch and to make him a responsible journalist, ordering him to pay Rs. 10,000/- to the complainant, in my opinion, will meet ends of justice. I am informed that accused No. 1 has already deposited Rs. 500/- in the lower Court as per the order of the Judicial Magistrate, First Class, Miraj. Hence the following order :

Revision Application is allowed. The amount of fine awarded by the lower Court is enhanced to Rs. 10,000/-. Since respondent No. 1 (accused No. 1) has already paid an amount of Rs. 500/-, he has to deposit the remaining amount of Rs. 9,500/-. Respondent No.1 Allabaksh Gulab Nadaf to deposit the amount in the lower Court within three months from today. The complainant Dnyandevrao Tatyarao Waghmode is at liberty to withdraw the said amount. On the failure of accused No. 1 to deposit the above mentioned amount within the prescribed period, accused No. 1 to undergo S.I. for one month in lieu thereof.

Criminal Revision Application is disposed of in the above stated terms.

In view of the above order passed in the Revision Application, Criminal Appeal does not survive. Appeal stands disposed of.

16. Cri. Rev. Application allowed.

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