| SooperKanoon Citation | sooperkanoon.com/375590 |
| Subject | Criminal |
| Court | Karnataka High Court |
| Decided On | Jun-16-1992 |
| Case Number | Criminal Petn. No. 1069 of 1991 |
| Judge | N.Y. Hanumanthappa, J. |
| Reported in | 1992CriLJ3788; ILR1992KAR2091; 1992(2)KarLJ449 |
| Appellant | S. Bangarappa |
| Respondent | Ganesh Narayan Hegade and Others |
| Appellant Advocate | K. Vishwanath, Adv. |
| Respondent Advocate | Jayakumar S. Patil and ;K.H. Jagadish, Advs. |
1. This criminal petition is filed under S. 482, Cr.P.C. against the order passed by the learned I Additional Sessions Judge, Dharwad, sitting at Hubli, in criminal Revision Petition No. 104/89 dated 20-7-1991 confirming the order of the learned J.M.F.C. II Court, Hubli, in C.C. No. 1514/87 dated 21-1-1989 by which the learned Magistrate exercising the power under S. 246, Cr.P.C. had ordered to frame charge against accused Nos. 1 to 3 therein for an offence punishable under S. 500, I.P.C.
2. The ranking of the parties in this petition is, petitioner is accused No. 1 and respondents 2 and 3 are accused Nos. 2 and 3 while the first respondent is the Complainant in the trial Court.
3. A few facts which compelled the learned Magistrate to charge the accused for an offence under S. 500, I.P.C. are that the first respondent herein lodged a private complaint under S. 200, Cr.P.C. wherein the allegations are as follows :-
(a) The Complainant belongs to a family known as 'Doddamane Hegde' of Siddapur. His family is highly reputed and well-known in the entire district of North Kanara and the neighbouring districts. The main occupation of the family of the Complainant is agriculture and sericulture. Some members of the family are also running rice mill. The Complainant has a residence at Hubli where his son is running a Chemical factory. The Complainant is the founder and President of various co-operative and educational institutions, some of which were headed by him. He is the founder President of Sahakari Shikshan Prasarak Samithi, Siddapur. He is closely associated with Samaj Shikshana Vishwasta Samithi, Modern Education Society, Sarvodaya Vokkalatan and Prathamik Bank etc. By his sincere and selfless work done in these institutions in the society. Sri Ramakrishna Hegde, the former Chief Ministry of Karnataka and the Complainant are cousins.
(b) The accused-1/petitioner is a Politician. During the relevant period he was the President of a political party called 'Kranthiranga' which, according to the Complainant, is still existing. The petitioner aspired to occupy the position of chief Minister of Karnataka but his desire was frustrated as Sri Ramakrishan Hegde became the Chief Minister. The petitioner was therefore waiting for an opportunity to tarnish the image of Sri Ramakrishna Hegde.
(c) Sri Ramakrishna Hegde contested to the Legislative Assembly from Kankapura Constituency to which the petitioner also setup his candidate to oppose Sri Hegde. During the said election period the petitioner, in order to achieve his object, called a Press Conference on 28-4-1983 in his residence at Bangalore by inviting the Reporters and Correspondents of all the newspapers at Bangalore. The Conference was attested to by respondents 2 and 3 herein along with others. In the said Press Conference the petitioner made a scandalous and false imputations concerning the Complainant and requested the Reporters and Correspondents to publish the same in their respective newspapers. Accordingly, the said imputations were reported in Samyukta Karnataka daily of its Hubli edition. Respondents 2 and 3 were its Publisher and Editor respectively. The relevant portion of the said statement reads as follows :-
According to the Complainant, the above imputations were made by the petitioner knowing fully well about its falsity and having knowledge that such imputations would defame and harm the reputation of the Complainant. Knowing fully well that the imputations are false, the accused deliberately and intentionally charged the Complainant of smuggling rice to Goa and thus causing loss to the exchequer in a sum of rupees 9 crores. By virtue of such imputations, the honesty, integrity and social status acquired by the family of the Complainant came to be erased. The newspaper which published the aforesaid statement has wide circulation in Hubli city. After reading the same, several persons of different walks of life approached the Complainant and made enquiries. The said imputations were per se made to defame and harm the reputation of the Complainant and the same has degraded the moral and intellectual character of the Complainant both as a businessman and a prominent Social Worker. The same has given rise to lowering the reputation of the Complainant and the members of his family in the estimation of the public and the Government.
(d) After publication of such impugation, the Complainant issued a notice to the petitioner calling upon him to tender an unconditional apology by expressing his regret as the imputations made per se defamatory and devoid of truth. The said notice was replied but the petitioner refused to apolozise. Hence the complaint was filed alleging that the accused have committed an offence by making and publishing such false imputations and the said act falls within the ambit of S. 499, I.P.C. which speaks about defamation and thus the accused are liable to be punished for an offence under S. 500, I.P.C. Accordingly, the Complainant requested the Court to take action against the accused.
(e) Though the complaint lodged was a private case, at the instance of the petitioner the same was converted to a warrant case and the Complainant was called upon to adduce evidence before the charge. Accordingly, the Complainant examined himself as PW-1 and further examined 5 witnesses. PW-2 is the Editor of Samyukta Karnataka and PWs 3 and 4 are his friends. PW-5 is the P.T.I. Correspondent and PW-6 is the Chief Reporter of Samyukta Karnataka. In support of his case the Complainant also produced 9 documents and they were got marked as Exs. P-1 to P-9. Ex. P-1 is the newspaper which, according to the Complainant, contains the statement of imputations. Ex. P-2 is the copy of notice issued at the instance of the Complainant. Ex. P-3 is the reply given by the petitioner to the notice. Ex. P-4 is the Special Committee Report. Ex. P-5 is the complaint. Ex. P-6 is the newspaper produced by PW-2. Exs. P-7, 8 and 9 are the written statements filed by the petitioner and respondents 2 and 3 respectively in O.S. No. 106/84 on the file of the Additional Civil Judge, Hubli.
(f) The petitioner/accused-1 produced 10 documents during the course of cross-examination of the Complainant. They were marked as Exs. D-1 to D-10. The relevant documents on accused side are Ex. D-8, a photostat copy of the memorandum received by accused/petitioner from the public and Ex. D-10, the memorandum against the Complainant filed in C.C. No. 552/65 on the file of the Munsiff & J.M.F.C., Siddapur.
(g) After hearing both the sides, the trial Court posed for itself the following point for its consideration :-
'Whether there are sufficient grounds to frame charges against A-1 to 3 for the offence punishable under section 500, I.P.C.'
During the course of arguments, learned counsel on both sides took certain contentions and also relied upon some of the authorities in support of respective contentions.
(h) The contentions raised by the learned counsel for the petitioner/accused-1 before the trial Court were as follows :-
i) The Complaint as such was not maintainable as the same is based on a news report which is an hearsay one and the same is inadmissible;
ii) From the material placed, it is not made out that an order as required under S. 245, Cr.P.C. deserves to be passed;
iii) The version given by the Complainant is purely an isolated one as the context in which the said statement was made has not been explained by the Complainant;
iv) The material produced by the Complainant is inadmissible in evidence;
v) The documents relied upon by the Complainant not come from proper custody;
vi) There is no legal evidence in favour of the Complainant;
vii) The statement, if any, made by the petitioner/accused-1 falls within Exception 9 to S. 499, I.P.C.
(i) In Support of the contentions, the authorities relied upon by the learned counsel for the petitioner/accused-1 were as follows :-
(1) All England Law Report Annotated : AIR1944Mad484 P. Balasubramaniam v. C. Rajagopalachari; (3) : AIR1953All371 , Shib Singh v. Sridhar; (4) : AIR1959Ori141 ), C. C. Das v. Raghunath Singh; (5) : [1969]3SCR603 , S. N. Balakrishna v. George Fernandis; (6) 1974 Cri LJ 33 (Mad), Karuppuswamy v. Natarajan; (7) 1981 Cri LJ 1208 (Him Pra), Prempaul Singh v. Mohanlal; (8) 1984 Cri LJ 52 NOC 134 (All), Kantiprasad Sharma v. S. K. Gupta; (9) 1984 Cri LJ 1790 (Guj), Narottamdas v. Patel Maganbhai; (10) 1985 Cri LJ 1283 (Kant), I. S. Jayappa v. N. S. Shamgouda; (11) 1985 Cri LJ 1496 (Ker), Konath Madhavi Amma v. S. M. Shariff; (12) : (1988)ILLJ551SC Karmachari Sangh v. AIR Ltd.
(j) On the other hand, learned counsel for the Complainant contended that at the stage of framing charges it is not the concern of the trial Court to consider the evidence meticulously. All that it has to see is whether grounds made out prima facie attract an action for framing charge or not. According to him, the material produced is sufficient to proceed further by directing the parties to face the trial by framing charges for an offence under S. 500, I.P.C. He felt that the following authorities support his contentions :-
(1) AIR 1952 Mys 123 : 1952 Cri LJ 1633), K. S. Nanjundaiah v. Setti Chikkathippanna; (2) : 1971CriLJ1110 , Balraj Khanna v. Motiram; (3) : 1971CriLJ1168 , Sukramatho v. Basudev Kumarmatho; (4) : 1977CriLJ1606 , State of Bihar v. Ramesh Singh; (5) : 1980CriLJ1271 , Keval Krishnan v. Suraj Bhan; (6) 1982 SCC (Cri) 148 : (1981 Cri LJ 1135), Md. Akbardar v. State of J&K.;
(k) The trial Court placing reliance on the law laid down by the Supreme Court in Ramesh Singh's case : 1977CriLJ1606 and Md. Akbardar's case 1982 SCC (Cri) 148 : (1981 Cri LJ 1135) came to the conclusion that at the time of framing of charge it is not necessary to look into the evidence adduced by the parties and also not necessary to give any (Sic) to the defence of the accused. All that is required to be seen is whether a prima facie case has been made out or not. While holding that meticulous consideration of evidence and material not required, it further observed as follows :-
'26 ...... In my opinion, at this stage, the evidentiary value of the documents and credibility of witnesses can not be considered in view of the settled principles by Supreme Court of India in the decisions cited supra. All the contentions advanced on behalf of accused persons could be weighed at the time of final disposal of the matter. Therefore, I am rather constrained to refrain from examining any of the contentions canvassed for the accused or considering the repercussions of cross-examination of witnesses, lest any observation made by me may prejudice either of the parties at the time of trial. Further, the evidence referred to in S. 245 relates to evidence before charge. Therefore I do not propose to examine any of contentions urged for accused No. 1 during the course of arguments and about the decisions cited at the Bar on behalf of accused persons.'
Regarding the applicability of Exception 9 to S. 499 I.P.C., the trial Court stated that the same to be invoked only when the parties went to trial and not earlier to that.
Thus, the trial Court held that after considering the material on record, it was of the opinion that there exists grounds to frame charges against accused 1 to 3 for the offence punishable under S. 500, IPC. and ordered as follows :-
'Acting under S. 246 of Code of Criminal Procedure, I order that charge shall be framed against A-1 to 3 for the offence punishable under section 500 of I.P.C.' (l) Aggrieved by the order of the trial Court, the petitioner herein preferred a revision petition under S. 399, Cr.P.C. before the learned Additional Sessions Judge, Dharwad, sitting at Hubli, in Criminal Revision Petition No. 104/89. The grounds made out by the petitioner in the said revision petition to assail the order of the learned Magistrate were as follows :-
The learned Magistrate was not justified in attaching importance to the newspaper report dated 29-4-1983 published in Samyukta Karnataka, Hubli Edition, as it was an hearsay one and thus inadmissible in evidence, as held by the Supreme Court in Laxmiraj Shetty v. State of Tamil Nadu : 1988CriLJ1783 wherein it is held as follows :-
'No judicial notice be taken note of taken note of the facts stated in a news item as it is in the nature of hearsay evidence which is inadmissible.' According to the learned counsel for the petitioner, placing reliance on the inadmissible evidence is again contrary to the law laid down by the other High Courts reported in (Khilumal Thopandas v. Arjundas Tulsidas) : AIR1959Ori141 (Chaitan Charan v. Raghunath Singh) and (Harbajan Singh v. State of Punjab). It was further contended that the approach of the trial Court in placing reliance on the statement of PW-6 Prahalada Kollali - the Press Correspondent - in spite of contradictions in addition to the admission of the said witness that the statement appeared on 29-4-1983 was not his report coupled with his further admission that on the basis of reports of other correspondents he prepared the alleged report; that the caption was not given by him; that in every paper the report given by the Correspondent will not be published verbatim; that he does not possess any documents to show that he attended the Press Conference on 28-4-1983; that some times the news appear in the press will not proper and that it also cannot be said that such news item will be of complete truth. Thus, the Correspondent and the Publisher not acted on the proper source on which they were entitled to act and since the actual words alleged to have been used were not mentioned, it is not proper to conclude that the words so appeared in the press amount to an insult or that the same were intended to defame the complainant. It was also contended that if the entire report is read in toto, it refers to a class of persons touching the administration and not a particular individual and as such no offence is committed. Regarding the findings of the trial Court that no evidentiary value to the documents be attached and credibility of the witnesses cannot be considered at the time of framing the charge and that they have to be considered only during the course of arguments, it is contended that the same are incorrect and runs contrary to S. 245, Cr.P.C. When not established any malice or intention to defame the complainant directly or indirectly, the trial Court erred in picking up only such material which speaks about defamation in isolation without taking into consideration the entire text and also the context in which the said statement alleged to have been made. Even otherwise, the petitioner being a person in public life and received complaints and memorandum making certain remarks and complaints against the then Government, he was justified in ventilating the views of the public in order to safeguard their interest. As the alleged statement was made in good faith in public interest, it comes under Exception 9 to S. 499, IPC. the trial Court not having considered the same, its order resulted in abuse of the process of the Court. It was also contended that when the private complaint came to be converted into a warrant case, the trial Court should have considered the evidence as it has power to sift and weigh the evidence to find out whether or not prima facie case has been made out instead of saying that meticulous consideration of evidence was not warranted at the time of framing of the charge. The trial Court committed an error in not taking into consideration the effect of Sections 211 and 227, Cr.P.C. on the one hand and S. 246 Cr.P.C. on the other hand. The trial Court also erred in not applying its mind and in not taking into consideration the real facts that 'there is no sufficient grounds for proceeding' and 'no case is made out, if unrebutted, would warrant his conviction'. It was also contended that the reliance placed by the trial Court on some of the authorities, on facts, are distinguishable and not applicable to the case on hand.
(m) As an answer to the above contentions, learned counsel for the Complainant submitted before the learned Sessions Judge that all the aforementioned contentions have no merit. According to him, the trial Court was justified in ordering to frame charge against the accused for an offence punishable under S. 500, I.P.C. It was argued that the trial Court was justified in observing that 'at the time of framing the charge meticulous consideration of evidence is not required but all that has to be seen is whether prima facie case has been made out or not.' According to him, whether some of the documents are admissible in evidence or not and whether Exception 9 to S. 499 I.P.C. can be extended to the accused or not, has to be considered only after arguments on merits are over and not earlier to that. It was further contended that after examining the material placed on record when the trial Court held that prima facie case has been made out, it is not proper for the revisional Court to interfere in such a matter unless is shown that the order under revision is either illegal or arbitrary or perverse. Thus contending, the learned counsel for the Complainant submitted that the revision petition be dismissed.
(n) In support of the rival contentions, both sides had relied upon various authorities, some of which is fact were relied upon by them before the trial Court, in addition to a few more decisions relied upon before the learned Sessions Judge.
(o) The learned Sessions Judge after considering the material on record has observed that the proceedings under S. 245(1) Cr.P.C. are preliminary in nature and before ordering framing of charge against the accused the test to be applied is whether prima facie case has been made out against them. He agreed that in view of the decisions of the Supreme Court in Niranjan Singh K. S. Punjabi v. Jitendra Bhimraj Bija : 1990CriLJ1869 and Ramesh Singh's case : 1977CriLJ1606 that even at the preliminary hearing stage of framing of charge the Court has to sift the evidence on record and other documents only for the limited purpose of ascertaining whether prima facie case is made out against the accused.
(i) Regarding the contention that statement contained in a newspaper is merely a hearsay and inadmissible in evidence in the absence of maker of the statement appearing in Court and deposing to have perceived the facts, the learned Sessions Judge by making reference to the relationship between the Complainant and the then Chief Minister of Karnataka Sri. Ramakrishna Hegde and the statement about the mal-administration of the then Government, observed that the contention that the news item published in Samyukta Karnataka dated 29-4-1983 inadmissible in evidence as unsustainable and it cannot be accepted.
(ii) Regarding the contention that the Complainant failed to produce the manuscript report sent by the Press Report who attended the Press Conference, the learned Sessions Judge by making reference to the statements of P.Ws. 2 and 6 has held that its production was not necessary for the reason that (i) by the time P.W. 6 went to the Conference, the petitioner/Accused-1 had completed his statement and P.W. 6 returned to the office and on the basis of the report of the other Reporters he prepared his report; (ii) Ex. P. 1(a), the news items, was published on the basis of his report and on the report of P.T.I. Reporter.
(iii) Regarding the contention that in the newspaper the source of the news agency is not mentioned, the same has been answered by the learned Sessions Judge to the effect that it has come in the evidence of P.W. 6 that the news published in Samyukta Karnataka dated 29-4-1983 and in other newspapers was in accordance with the news report submitted to his office and therefore at the stage of framing charge the same have been totally discarded.
(iv) Regarding the proposition that as on the date of the alleged statement the petitioner was heading a political party (Krantiranga) and as its leader he received representations and memorandum from the public and accordingly he pointed out the lapses of the administration of the then Government including the alleged smuggling of rice by the complainant and therefore, when the context in which the accused made the alleged statement had been taken into consideration, the finding would have been that there was no intention on the part of the accused/petitioner on causing harm to the reputation of the Complainant. But, the learned Sessions Judge, without noticing the same, observed that at the time of framing charge it cannot be inferred that Accused-I/petitioner had no intention of causing harm to the reputation of the complainant.
(v) Regarding the applicability of Exception 9 to S. 499, IPC, the learned Sessions Judge has observed that the same shall have to be gone into at the time of arguments.
(vi) While explaining the scope of S. 397, Cr.P.C. the learned Sessions Judge observed that the Court in revision can interfere with the orders of the subordinate Court only when they are illegal, capricious or perverse. According to the learned Sessions Judge, the learned Magistrate in the course of the order under revision has not stated that he sifted the evidence of the witnesses for the limited purpose of ascertaining whether a prima facie case has been made out against the accused. However, he committed an error by satisfying himself making reference to para 26 of the trial Court's order and observing thus :
'......... it would appear that the trial Court has considered the evidence of the complainant and his witnesses, the documents and other materials on record relied upon by the Complainant for the purpose of ascertaining whether prima facie case is made out against the accused.'
Which approach of the learned Sessions Judge is quite incorrect and inconsistent. Thus, by giving reasons as stated above, the learned Sessions Judge dismissed the revision petition filed by the petitioner.
(p) Aggrieved by the above two orders, the petitioner has preferred this petition under S. 482, Cr.P.C. seeking to quash both the orders.
4. The grounds made out to quash the orders under challenge are as follows :
(1) The imputations referred to if read properly they do not fall under S. 499, IPC;
(2) The orders of the Courts below are in direct contravention of S. 499, IPC;
(3) The orders of the Courts below are in direct contravention of Ss. 244 and 245, Cr.P.C.;
(4) The Courts below failed in not noticing that S. 245 Cr.P.C. gives power to the Magistrate to consider the evidence on record with a view to ascertain whether prima facie case for conviction has been made out or not;
(5) Though meticulous consideration of evidence is not warranted at the time of framing charge, its non-consideration is ridiculous;
(6) The order of the learned Sessions Judge is resultant of non-application of mind to the provisions of S. 245, Cr.P.C., including the law laid down by the Courts on the question of making use of evidence;
(7) When the learned Sessions Judge has accepted the contentions of the petitioner that the trial Court, no doubt, in the course of the order has not stated in so many words that he sifted the evidence of the witnesses for the limited purpose of ascertaining whether prima face case has been made out against the accused, but he committed a mistake in holding that it would appear that the trial Court has considered the evidence of the Complainant and his witnesses, the documents and other materials on record relied upon by the Complainant for the purpose of ascertaining whether prima facie case has been made out against the accused;
(8) Whether the ingredients of an act of defaming a person not made out, it is incorrect to connect the petitioner to an offence punishable under S. 500, IPC.;
(9) The statements of P.Ws. 2 and 6 do not disclose the source of news and its authenticity, coupled with non production of the same news alleged to have been published in other newspapers like The Hindu, Decan Herald, Prajavani, Indian Express, Kannada Prabha, Times of India and Sanje Vani and as such no importance should have been attached to the statement published in Samyukta Karnataka of Hubli Edition.
(10) When the statements of witnesses of the Complainant do not inspire and confidence, no importance should have been attached to the said statements;
(11) Both the Courts below have erred in not taking into consideration the evidentiary value of the news item appeared in Samyukta Karnataka on 29-4-1983 which was a hearsay and thus inadmissible in evidence;
(12) When both the orders are illegal and resulted in miscarriage of justice, the same deserve to be corrected as otherwise they would result in abuse of process of the Court thus compelling the petitioner to face unnecessary trial and harassment.
5. As an answer to the above, Sri Jayakumar S. Patil, learned counsel for the Complainant/Respondent-1, contended as follows :
The petition filed under S. 482, Cr.P.C. is not maintainable for the following reasons :
(1) According to him, as against he order passed under S. 246, Cr.P.C. a revision was filed before the learned Sessions Judge and the same was dismissed. As such, it is not proper for this Court to interfere with the concurrent findings given by both the Courts below, that too in the absence of any manifest illegality or arbitrariness or perversity in the orders of the Courts below;
(2) When the trial Court has jurisdiction to try a case and on the material available on record and has taken a decision to proceed with, it is not proper for this Court to interfere in such a finding;
(3) The powers under S. 482, Cr.P.C. can be exercised by this Court only to prevent abuse of process of the Court and to secure ends of justice and that too the said powers have to be exercised only in the rarest of rare cases and sparingly;
(4) When it is not shown any abuse of process of the Court by the Courts below to proceed against the petitioner and the other two accused, it is not proper and safe to interfere under S. 482, Cr.P.C.;
(5) On the material produced, merely because it is possible to form a different opinion than the one already formed by the Courts below, still it is not proper to interfere;
(6) The Court can interfere under S. 482, Cr.P.C. only when no offence is made out or the grounds made out are quite vague or when the discretion exercised by the Courts below are either arbitrary or capricious or when the Courts below proceeded with the case in the absence of any sanction or without the authority of law or devoid of jurisdiction;
(7) On the material available on record the trial Court formed an opinion that prima facie case has been made out against the petitioner and two others for an offence punishable under S. 500, IPC as such it is not proper to interfere now;
(8) The scope of S. 245, Cr.P.C. is to consider from the evidence made available whether prima facie case has been made out and not to have a meticulous consideration of the evidence;
(9) When the scales are even in nature on the material produced, the approach of the Court shall be one of charge and not of discharge;
(10) From the evidence of the Complainant and the witnesses and the documents produced, it is established that the statement made by the petitioner/accused-1 is highly objectionable as the said imputations resulted in lowering the reputation of the Complainant in the estimation of the public and thus perse defamatory and the accused are liable to be punished under S. 500, IPC.;
(11) The contention of the learned counsel for the petitioner that the context in which the statement alleged to have been made is not taken into consideration, has no force when the statement itself is perse defamatory;
(12) The delay, if any, caused in concluding the proceedings should not be a ground to seek for discharge as the petitioner alone to be blamed for such delay;
(13) If the contentions raised by the petitioner are accepted, it amounts to indirectly requesting this Court to pass a final order which is the concern of the trial Court.
For the aforesaid reasons, he submitted that the petition be dismissed as being no merit.
6. In support of the rival contentions both the learned counsel relied upon a number of authorities of the Supreme Court and other High courts, some of which were in fact referred to before the learned Sessions Judge and the trial Court. Some authorities have been commonly relied upon by both sides as the observations made therein or particular points support the contentions of each other. The authorities relied upon by both the sides and how far they are relevant and applicable to the facts of this case will be dealt with at appropriate stage.
7. From the above material now the points that arise for consideration are :
(i) When once revisional power has been exercised by a revisional Court, whether this Court's power under S. 482, Cr.P.C. to interfere with is excluded
(ii) When can under S. 245, Cr.P.C. an accused be discharged
(iii) Whether the Courts below are right in arriving at a conclusion that prima facie case has been made out against the accused to connect him to an offence punishable under S. 500, IPC
7A. In order to decide the above points, it is proper to the scope and effect of some of the provisions of Cr.P.C. the Memorandum submitted to the petitioner, the news item appeared in Samyukta Karnataka on 29-4-1983, the reply to the notice and the relevant portions in the statements of some of the witnesses. To begin with, it is proper to examine the scope of Sections 482, 204, 227, 228, 244, 245 and 246(1) Cr.P.C.
8. Section 482 deals with the inherent powers of the High Court. section 204 deals with issuing of process by a Magistrate on receipt of a complaint. Section 227 deals with discharge of an accused when the Court finds no prima facie case against the accused. Section 228 deals with framing of charge by the Sessions Judge on filing of charge-sheet by the prosecution. The relevant provisions are extracted hereunder :
Section 482, Cr.P.C. reads thus :
'482. Saving of inherent powers of high Court -
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.'
Section 244 reads thus :
'244. Evidence for prosecution -
(1) When, in any warrant-case instituted otherwise than in a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.'
Section 245, Cr.P.C. which speaks about discharge of an accused reads thus :
'245 When accused shall be discharged -
(1) If, upon taking all the evidence referred in S. 244, the Magistrate considers for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.'
Section 246(1) Cr.P.C. reads thus :
'246. Procedure where accused is not discharged -
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.'
Section 499, IPC. which speaks about 'defamation' Reads thus :
'499. Defamation - 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 imputations will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1. to 3. ........................
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.'
Explanation 9 to S. 499, IPC absolves a person from conviction in case the imputation made is in good faith and it reads thus :
'Ninth Exception - Imputation made in good faith by person for protection of his or other's interests :
It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for protection of the interest of the person making it, or of any other person, or for the public good.'
Section 500, IPC deals with punishment where imputation is proved.
9. To deal with the first point, it is proper to bear in mind the scope of S. 482, Cr.P.C. which is extracted above. The general rule is that when once Courts below exercised the discretion, this Court shall not interfere and its interference shall be very sparingly and in the rarest of rare cases. But, that does not mean the powers of this Court are excluded even where it is shown that orders of the Courts below are manifestly illegal, without jurisdiction or based on no legal evidence, or grounds made out do not constitute the offence alleged, or such grounds absurd or no prima facie case made out.
10. To prevent abuse of the process of the Court or to secure ends of justice, this Court can definitely interfere and correct such orders made by any Court subordinate to High Court.
11. Both the counsel in support of their rival contentions for the above propositions relied upon the following decisions :
In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre : 1988CriLJ853 which dealing with S. 482, Cr.P.C. the Supreme Court held thus (para 7) :
'The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at the preliminary stage.'
12. Regarding the inherent powers of the Court under S. 482, Cr.P.C. the Supreme Court in State of Bihar v. Murad Ali Khan : 1989CriLJ1005 .
'It is trite that jurisdiction under S. 482, Cr.P.C. which saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell-out any offence and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the court or not.'
In Radhey Shyam v. Kunj Behari : 1990CriLJ669 the Supreme Court while dealing with the scope of S. 482 Cr.P.C. making reference to its earlier decision in Mohd. Akbar Dar's case : 1981CriLJ1135 observed that at the time of framing charges meticulous consideration of evidence and materials by Court is not required.
13. When once the Court below formed their opinion on the material made available, it is not proper for this Court to substitute its opinion and thus interfere in the discretion exercised by the Court below. For this proposition the authority relied upon is of the Supreme Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi : 1976CriLJ1533 wherein the Supreme Court held thus (para 5) :
'It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under section 202 which culminates into an order under section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :
(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) where the complaints suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.'
However, one has to bear in mind that if the discretion exercised is capricious or arbitrary or perverse or if it is shown that the allegations made are frivolous or that the Courts below have failed to take into consideration some of the important material or incorrectly entertained some of the material, the Court can certainly interfere in such matter, as otherwise it results in abuse of process of the Court and thus leading to miscarriage of justice. This position has been made clear by the Supreme Court and also this Court in the following cases :
In C. N. Seetharam v. State of Karnataka : ILR1988KAR2053 this Court held thus :
'Where, within the limits of the exercise of the statutory power, the police in cognizable case take up investigation under Section 157 Cr.P.C. the High Court will refrain from interfering in the course of investigation. There are exceptions to this broad principle of law as laid in various decisions. For instance where the facts in the FIR themselves do not constitute any cognizable or non-cognizable offence and if the police proceed to register a case and take up investigation, the High Court will be within its powers to interfere with such investigation and quash the FIR either in exercise of the powers of Writ jurisdiction or inherent powers conferred under section 482 Cr.P.C. to prevent abuse of the process of Court or other wise to secure the ends of justice.' The Supreme Court in Mrs. Dhanalakshmi v. R. Prasanna Kumar : 1990CriLJ320 observed thus (Para 3):
'Section 482 empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under S. 482.'
This Court in Yeshvir Goyal v. Union of India, ILR 1992 Kant 198 while dealing with Section 482 of Cr.P.C. held as follows :
'The inherent powers under section 482 Cr.P.C. are to be used sparingly and with circumspection. But, it cannot be said that, if the allegations made in the complaint are either vague and frivolous in nature or vexatious, this Court should close its eyes and refuse to quash the proceedings initiated on such baseless allegations. Thus powers under section 482 Cr.P.C. to quash the FIR or investigation be exercised when it is shown on consideration of relevant material that (i) Ground made out in the complaint to suspect that an offence has been committed are not reasonable; (ii) Allegations in the complaint if read as a whole do not constitute an offence; (iii) FIR is quite frivolous and vexatious in that prima facie no cognizable or non-cognizable offence has been made out (iv)(a) Interference under section 482 Cr.P.C. is required to correct any order passed under this Code, or (b) to prevent abuse of process of the Court, or (c) to secure the ends of justice.'
From the above discussion, it is clear that this Court can exercise its extra-ordinary power and quash the proceedings when the proceedings are based on no legal evidence, or the allegations do not constitute an offence, or the proceedings initiated are to harass a citizen, or non-interference will result in abuse of the process of the Court, or the the allegations are frivolous and vexatious, or the circumstances warrant securing justice to both the parties.
14. The second point for consideration is that when can an accused be discharged under section 245 Cr.P.C. It is said in Section 245 Cr.P.C. that the Magistrate on consideration of all evidence, if no grounds are made out to connect the accused to the offence alleged, shall discharge the accused. The idea behind the discharge is that any conviction results in depriving of an individual's personal liberty. As such, before framing a charge, it is paramount duty of any Court to see that whether the allegations made out constitute a prima facie case and the grounds so mentioned are sufficient to connect such a person to the offence alleged and warrant an inference of conviction. The scope of Section 245 Cr.P.C. does not speak about meticulous consideration of evidence, but it definitely mandates a sincere and honest application of mind to the allegations made and that the Court shall find out that the grounds or ingredients of an offence alleged are made out. Section 245 Cr.P.C. does not contemplate a mechanical approach, but it expects a reasonable and judicious approach to know the existence of grounds and establishment of prima facie case. While exercising the powers under Section 245 Cr.P.C. the Court shall not evaluate the evidence available on record meticulously. All that it has to see is whether prima facie case has been made out to frame charge. But, that does not mean - as has been wrongly understood by the Courts below - that while exercising the powers under section 245 Cr.P.C. there is no scope for the Court to consider whether from the material made available grounds have been made out establishing the offence alleged to have been committed or otherwise.
15. Regarding framing of charge or discharging of an accused, it is held as follows : When once it is established from the material that a prima facie case has been made out, the Court shall not discharge the accused, as held by Supreme Court in Mahant Abhey Dass v. S. Gurdial Singh : 1971CriLJ691 thus :
'Held that if the allegations were true the accused had committed the offences charged against them. Thus a prima facie case had been made out against the accused and they should not have been discharged under section 253(2).'
16. For the proposition that when once it is shown from the allegations made that sufficient grounds have been made out to proceed with the case, it is not proper to weight the evidence meticulously. In State of Bihar v. Ramesh Singh : 1977CriLJ1606 , the Supreme Court held as under (Para 4) :
'Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finaly applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.'
In R. S. Nayak v. A. R. Antulay : 1986CriLJ1922 while dealing with Section 4 of the Prevention of Corruption Act and Sections 161 and 165 of the Criminal Procedure Code, the Supreme Court held thus (para 2) :
'It cannot be said that the presumption of S. 4 of the Prevention of Corruption Act, 1947 applies only after a charge is framed against an accused. The presumption is applicable also at the stage when the court is considering the question whether a charge should be framed or not. When the Court is considering under S. 245(1) of the Cr.P.C. whether any case has been made out against the accused which is unrebutted would warrant his conviction, it cannot brush aside the presumption under S. 4 of the Prevention of Corruption Act, 1947.
Regarding the test of 'prima facie case' has to be applied before framing of charge, the Supreme Court in the above decision held thus (para 44) :
'The Cr.P.C. contemplates discharge of the accused by the Court of Session under S. 227 in a case triable by it; cases instituted upon a police report are covered by S. 239 and cases instituted otherwise than on police report are dealt with in S. 245. The three section contain somewhat different provisions in regard to discharge of the accused. Under S. 227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused'. Obligation to discharge the accused under section 239 arises when 'the Magistrate considers the charge against the accused to be groundless.' The power to discharge is exercisable under S. 245(1) when 'the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction .....' It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage of discharge under S. 245, on the other hand, is reached only after the evidence referred to in S. 244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S. 245(1) is a preliminary one and the test of 'prima facie' case has to be applied. In spite of the difference in the language of the three sections the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed.'
In Kewal Krishan v. Suraj Bhan : 1980CriLJ1271 the Supreme Court held as follows (Para 9) :
'At the stage of Sections 203 and 204, in a case exclusively triable by the Court of Session, all that the Magistrate has to be is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is 'sufficient ground for proceeding' against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. Even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to the case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.'
The Supreme Court in Mohd. Akbar Dar v. State of Jammu and Kashmir : 1981CriLJ1135 held thus (para 2) :
'It is true that the High Court has not gone into the details or the pros and cons of the matter. This was obviously because that is not the stage when the Court could enter into meticulous consideration of the evidence and materials. The High Court has clearly observed that after perusing the statement of the witnesses recorded under S. 161, it was unable to find that the charges could be said to be groundless.
In Mahantaswamy v. State of Karnataka, ILR 1986 Kant 2970 : (1987 Cri LJ 497) this Court dealing with Section 239 of Cr.P.C. held thus (at p. 500 of Cri LJ) :
'Section 239 Cr.P.C. lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in my opinion, means that there must the no ground for presuming that the accused has committed the offence. The word 'groundless' used in Section 239 Cr.P.C. means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.
The learned author Sri. Sarkar in his Criminal Procedure Code, 5th Edition, on page 427, has opined as :
'The provision is the same as in Section 227, the only difference being that the Magistrate may examine the accused, if necessary, of also Section 245. The Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and documents mentioned in Section 173; (ii) examining the accused, if necessary and (iii) hearing the arguments of both sides he thinks the charge against him to be groundless, i.e., either there in no legal evidence or that the facts do not make out any offence at all.'
In short it means that if no prima facie case regarding the commission of any offence is made out it would amount to a charge being groundless.'
17. However, before ordering for charge the approach of the Court to consider the evidence shall be one of judicious and honest approach and not a mechanical one as otherwise by framing such charge there will be a threat to person's liberty as held by the Supreme Court in Century Spinning & . v. The State of Maharashtra : 1972CriLJ329 thus :
'It cannot be said that the Court at the stage of framing the charges has not not apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S. 173 consider it proper to institute the case. The responsibility of framing the charges it that of the court and has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.
Held that the trial court rightly came to conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order. The High Court was in error in reversing that order.'
From the above decisions it is clear that while considering scope of S. 245, the trial court shall not go into meticulous consideration of material produced. All that it has it has to see is whether prima facie case has been made out or grounds exist to connect the accused to the offence alleged. Because the object of discharge is to save the accused from unnecessary concomitant of protracted trial. Thus, if there is no prima facie case of sufficient and strong grounds to proceed against the accused are not made out and the allegations are baseless or the proceedings are mainly aimed at harassing an accused, under such circumstances it is just and proper for the trial Court to discharge the accused and thus prevent abuse of the process of the Court.
18. The third point for consideration is whether prima facie case has been made out to charge the accused to the offence punishable under S. 500, I.P.C. or he deserves to be discharged from the said accusation. The Court has to consider the evidence produced and its admissibility, circumstances under which and the context to make such imputation including the intention to make such imputation, whether the said accusation can be believed to have harmed the complainant's reputation and, if the accusation is really made, is not the accused entitled for discharge if the intention and the context are alleviating factors.
To decide this, it is proper to refer here to the contents of the Memorandum, Exhibit D. 8, the reply notice issued by the petitioner and some of the admissions made by the important witnesses of the complaint.
The Memorandum submitted to the petitioner reads thus :
9. In the reply sent on behalf of the petitioner to the notice issued on behalf of the Complainant, it is mentioned as follows :
10. Let me examine now the evidence of complainant's witnesses. In the cross-examination of P.W. 2 Ramachandra, the Editor of Samyuktha Karnataka of Hubli Edition, it is elicited as follows :-
P.W. 5 M. K. Vidyaranya the P.T.I. Reporter has deposed as under :-
P.W. 6 Prahlad Kolali, the Chief Reporter of the daily in question has deposed to effect that :-
From the above evidence, it is clear that on the date of Press Conference, the accused was a leader of 'Kranthi Ranga' a Political Party of the State. He received a copy of the Memorandum wherein certain lapses on the part of the then Ruling Party in the State including Rice smuggling was highlighted. In his reply notice accused/petitioner stated that the so-called meeting that was convened was only in the public interest and to ventilate the grievances of the public including communicating the feelings of the public to the Government about its lapses and mal-administration. The rice deal was just an incidental one. It is further stated that at no time he had any intention either to defame the complainant or the members of his family or to wound their feelings. It is also mentioned in the reply notice that at the relevant time, Election to Kanakapura Assembly was going on from where Shri Ramakrishna Hegde had contested and the petitioner was touring the entire constituency in favour of one of his Party's candidates. He addressed voters of the constituency at different places. But he never said anything about the Rice deal.
It has come in the evidence of P.W. 5 that the petitioner was in the public field. In the public interest and to expose the lapses on the administration, the Press Conference was convened. It is also in the evidence of P.W. 6 that each reporter will take down in his way. They will use their own style of language while giving captions to the news item and narrating the contents. The Conference dated 28-4-1983 was in respect of State's Administration. He admitted that he cannot remember whether the word 'smuggling' was mentioned in the report.
19. The case of the complainant is that the petitioner/Accused-1 was responsible in calling a Press Conference on 28-4-1983 and making a statement which resulted in defaming the complainant. According to the complainant, the important material to substantiate the imputations alleged is in Ex. P. 1 at Ex. P. 1(a) which is the statement appeared in Samyukta Karnataka dated 29-4-1983 of Hubli Edition (as Extracted above). Ex. P. 2 is the legal notice. No doubt, the Courts below made reference to Ex. P. 1(a) and some portions of the statements of the witnesses. But, they failed to take into consideration the context in which the statement was made by the petitioner, the reasons assigned in the reply notice Ex. P3 and some of the admissions in the statement of the complainant and of his witnesses. It is needless to say when the Court desires to place reliance on some evidence, first of all it has to see whether the evidence to be relied upon is admissible in evidence or not.
20. While considering the evidence to ascertain whether prima facie case has been made out or not, it is also the duty of the Court to see the statement as a whole and also the contents of the documents are read fully and not by way of dissecting it or in isolation. Because, if the entire document and the statements are read as a whole, the same will give the real picture or the intention. In this connection, it is proper to bear in mind the news appeared in Ex. P. 1 at Ex. P. 1(a), the portion extracted above from the reply notice of the petitioner preceded by the Memorandum at Ex. D-8 dated 15-4-1983 received by the petitioner with copies marked to other Legislators, the then Leader of Opposition including the Government and also to some portions of the statement of the complaint and the statements of his witnesses as extracted above.
21. In order to know whether the complaint made by the 1st respondent is true and the petitioner and Respondents 2 and 3 are liable to be punished under S. 500, IPC or not, it is proper to bear in mind the circumstances under which the imputations are made. It can be said that an offence under S. 499, IPC has been committed when any one of the acts specified in Explanations 1 to 4 to S. 499, IPC is not existing. For the purpose of the case on hand, Explanation 4 is relevant and the same has been extracted above. To attract S. 499, I.P.C. the imputations shall be made intentionally and there shall be reason to believe that the same would harm the reputation of the person against whom it is made. When can a person be charged for an offence punishable under S. 500, IPC has been clearly explained in Prem Paul Singh v. Mohan Lal 1981 Cri LJ 1208 (Him Pra). The relevant portion reads thus (at p. 1211 of Cri LJ) :
'The essential ingredients for an offence falling under S. 500, I.P.C. are (i) the making or publishing of an imputation concerning any person; (ii) such imputation must have been made (a) by words either spoken or intended to be read; or (b) by signs; (c) or by visible representations and (iii) such imputations must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person concerning whom it is made. Imputation means accusation against a person and it implies an allegation of fact and not merely a term of abuse.'
22. The material produced voz., Ex. P. 1(a), the reply given to the notice, the Memorandum Ex. D. 8 and the evidence of the complainant and the witnesses, relevant portions of which have been extracted above, if compared to the above ingredients for an offence under S. 499, falsify the theory put forth of the complainant of the following reasons :
Firstly, the Courts below placed reliance on the material, namely, the news item, without noticing the same as hearsay and inadmissible in evidence, as held by the Supreme Court and other High Courts. Some of the decisions are :
(a) Laxmi Raj Shetty v. State of Tamil Nadu : 1988CriLJ1783 wherein the Supreme Court held as follows :
'Judicial notice cannot be taken on the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in S. 78(2) of the Evidence Act by which an allegation of fact can be proved. The presumption of genuineness attached under S. 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.'
(b) In Khilumal Topandas v. Arjundas Tulsidas , the Rajasthan High Court held as under :
'A report of a speech made in the newspaper is not admissible in evidence to prove the speeches. The party must produce the person who had made the speeches or the persons in whose presence such speeches were made or the reporter of the newspaper in whose presence the speeches were made and who had sent the report to be published in the paper.'
(c) The Allahabad High Court in Shib Singh v. Sridhar : AIR1953All371 dealing with a report of the Commissioner which is inadmissible in evidence, held as follows (paras 4 and 5) :
'Since the report of the Commissioner played a very important role in enabling the Magistrate in arriving at his finding and since this report was inadmissible in evidence, the learned Magistrate's finding cannot stand.
In the circumstances the reference is accepted. The learned Magistrate's order is set aside. The case shall be sent back to the learned Magistrate. The commissioner shall be summoned and shall be examined and cross-examined in Court. Thereafter, the learned Magistrate shall record his finding on the disputed point and dispose of the case.'
(d) In Harbhajan Singh v. State of Punjab , the Punjab High Court held thus :
'The presumption of genuiness attached under S. 81, Evidence Act to a newspaper cannot be treated as proof of the facts reported therein, as a statement of a fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence, in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported.'
(e) In Narayan Choudhury v. Radha Gobinda Dutta : AIR1971Cal53 , the Calcutta High Court held thus (para 5) :
'These are not however the only defects in the order impugned. The two publications which form the sheet-anchor of the prosecution case viz., the publication dated the 9th April, 2965 and the publication dated the 23rd July, 1965, marked as exhibits 1 and 2 respectively have not been properly admitted in evidence. Objection to the admissibility of the two exhibits 1 and 2 was taken at the time of the evidence of P.W. 1 who sought to prove the same. A specific ground has also been taken in the memorandum of appeal as well as in the petition for special leave. The findings arrived at in this context by the learned Magistrate are contradictory. While appreciating the view-point of the learned defence lawyer in this context, the learned trying Magistrate nonetheless disagreed with his submission that the prosecution case must entirely fall on this ground alone. It is difficult to appreciate the ration decidendi of the learned Magistrate and also to follow the case-law referred to by him. In short, the learned trying Magistrate has erred in law in his finding on this point, which goes to the root of the case. The position in law is quite clear. A reference in this context may be made to the case of Joy Engineering Works v. State of West Bengal, reported in : AIR1968Cal407 wherein Mr. Justice Banerjee observed at page 445 that 'the learned Advocate-General objected to any reliance being placed on the press reports set out above because according to him they were not admissible in evidence in the absence of affidavits by the correspondents or the reports. He is right in his contention and the stand taken by him find supports from the decision of the Supreme Court in : [1960]1SCR580 .' I will now refer to the Supreme Court case mentioned above. In the case of Gullappalli Nageswararao (In C.A. No. 198 of 1959) Chennupati Satyanarayana (In C.A. No. 199 of 1959) and V. Somasankara Sastry (In C.A. No. 200 of 1959), v. State of Andhra Pradesh, reported in : [1960]1SCR580 , Mr. Justice K. Subbarao (as his Lordship then was), observed at page 1382 that 'no attempt was made by the appellants to file any affidavit in the High Court, sworn to by persons who had attended the meetings addressed by the Chief Minister and heard him making the said statements. In the circumstances it must be held that it has not been established by the appellants that the Chief Minister made the speeches indicating his closed mind on the subject of nationalization of bus transport in Krishna District, Hooghly. If these newspaper cuttings are excluded from evidence, factual basis for the appellant's arguments disappears'. A reference may also be made to the case of Harbhajan Singh v. State of Punjab, reported in wherein Mr. Justice Tek Chand observed at page 221 (of AIR) : (at p. 717 of Cri LJ) that 'the presumption of genuineness attached under this section (S. 81 of the Indian Evidence Act) to a newspaper cannot be treated as proof of the facts reported therein, as a statement of a fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence, in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.' I respectfully agree with the principles laid down in the aforesaid cases and hold that the publications impugned have not been legally proved. The publications impugned should have been properly proved by the complainant by producing an attested copy of a declaration by the accused in his capacity as an editor of the fortnightly under S. 5 of Act XXV of 1867 to establish that he was the editor of the newspaper concerned. The result is that there has been a non-conformance to the producer established by law in disposing of the case by the court below. In the well-known case of Taylor v. Taylor reported in (1876) 1 Ch D. 426 Jessel M. R. observed at p. 431 that 'when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, the means that no other mode is to be adopted .......' The said principles were approved of and applied by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. The King Emperor reported in Lord Roche, delivering the judgment of the Judicial Committee, observed at pages 381 and 382 (of Ind App) : (at p. 257 of AIR) : (at p. 901 of Cri LJ) that 'the rule which applies is a different and not less well recognized rule viz., that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden'. In a later decision the Supreme Court again reiterated the said principles when in the case of State of Uttar Pradesh v. Singhara Singh reported in : [1964]4SCR485 , A. K. Sarkar J. (as his Lordship then was) delivering the judgment of the court observed at p. 361 of AIR) : (at p. 266 of Cri LJ) that 'the rule adopted in (1876 1 Ch. D. 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted'. I respectfully agree with the said observations and I hold in the facts and circumstances of the present case that there has been a mistrial due to the reception and consideration of inadmissible evidence and the resultant non-conformance to the procedure established by law, vitiating the ultimate order of acquittal. The same is accordingly liable to be set aside and the case should go back to the court below for a proper trial in accordance with law.'
Secondly, while considering whether an offence under S. 499 punishable under S. 500, IPC is made out or not, one shall take into consideration the entire contents of the documents instead of picking out only that portion which is favourable to the complainant, as held by the Supreme Court as well as the Orissa High Court, viz.,
(1) Haji C. H. Mohammad Koya v. T. K. S. M. A. Muthukoya : [1979]1SCR664 wherein the Supreme Court held as follows :
'It is well settled that an admission unless it is separable has to be taken as a whole or not at all : 1953CriLJ129 , and : 1974CriLJ447 .
Held in the facts and circumstances that the only evidence from which the Court can find that the appellant, (the returned candidate) had committed a corrupt practice as contemplated by S. 123(3A) of the act is the evidence of the appellant containing the explanation and the ramifications of his speech which being an admission had to be taken as a whole or not at all. Moreover, as the offending extract of the speech was an integral part of the speech of the appellant it could not be disected. In other words, a corrupt practice must be proved beyond reasonable doubt and applying this standard it must be held that the petitioner had failed to prove that the speech given by the appellant promoted or attempted to promote hatred or enmity between two classes of citizens.'
and (2) Chaitan Charan Das v. Raghunath Singh : AIR1959Ori141 wherein the Orissa High Court held as follows (para 8) :
'It is well settled that where some passages in a petition are alleged to be defamatory, the document should be read as a whole, with a view to find out the main purport, and too much importance should not be attached to a few isolated passages here and there. I may refer to Cassem Kurrim v. Jonas Hedjee Seedick, (1905) 9 Cal WN 195 : (1905 (2) Cri LJ 47) where though some passages in a circular letter issued by the accused were found to be objectionable, yet the Court held that it was not a fit case for a criminal court to take action under S. 500, IPC. I may quote the following observations (at page 198) (of Cal WN) : (at p. 50 of Cri LJ) :
'Then, with reference to the point which has been strongly insisted on behalf of the respondent, that the letter goes beyond the limits or ordinary privilege, we feel that we must look upon the letter as a whole. If it is looked upon as a whole the particular passage which is objected to really appears as a statement of the reason which induced the writer to make the request that he does.'
In the present case also the allegations of profligacy and mismanagement against the petitioner were made by way of a historical summing up of the administration of the religious endowment in question, ever since it was founded during the time of the grandfather of the petitioner. The opposite party was keen on impressing on the Minister the public nature of the endowment and the urgent necessity for the speedy disposal of the proceeding before the Assistant Endowments Commissioner, so that it may come under the control of the Endowments Department for the purpose of better management.'
Thirdly, it is to be seen that whether such imputations have been made by a person with the knowledge of causing harm or made with a good faith in order to serve either his interest or the interest of the public. The legal position on this point has been clearly explained in Prem Pal Singh's case, 1981 Cri LJ 1208 (Him Pra) extracted above. Further, if imputation is made in good faith, the consequences that may follow has been explained in the following authorities also :
In P. Balasubramania Mudaliar v. C. Rajagopalachariar : AIR1944Mad484 it is held thus :
'It is open to the accused to raise different and inconsistent pleas. In a defamation case the accused can plead that the passage was not defamatory because it bore a different significance or meaning from the one attributed to it by the complainant, and also in the alternative that if it was defamatory because it bore the meaning given to it by the prosecution, it was an honest expression of opinion made in good faith and for the good of the public.' In Chaitan Charan Das' case : AIR1959Ori141 the Orissa High Court was of the same view, as seen from the portion extracted below (para 7) :
'It is true that the virtue of S. 105 of the Evidence Act the Court is bound to presume the absence of circumstances which would bring the offence within any of the special Exceptions contained in S. 499, IPC and the burden would primarily rest on the accused to show that Exception applied. But it is well known that the burden cast on the accused in a criminal case, by virtue of S. 105 of the Evidence Act, is not so onerous as the primary burden cast on the prosecution to prove the offence beyond reasonable doubt.
If, therefore, on a careful review of the circumstances under which the complaint was made and the other events which have come to light it appears to the Court that one of Exceptions to S. 499, IPC may possibly apply, the accused may be held to have discharged his burden. Moreover the essence of the offence of defamation, as given in S. 499, IPC is that the imputation must have been made either with the intention of causing harm, or knowing or having reason to believe that such imputation would cause harm to a person. In judging whether the applicant (opposite party) had such intention or knowledge, the circumstances under which the main object with which the application was sent including the prayer asked for from the Minister, and the background of the dispute between the parties before the Endowment Department, should all be considered. If, after a careful consideration of all these facts it does not appear that the accused had the necessary intention or knowledge it will not be proper to place him on trial for an offence under S. 500, IPC.'
Fourthly, before giving a finding on the allegations made, it is also proper for the Court to take into consideration the context in which such imputations have been made, because in a democratic society and where the freedom of speech and expression is made one of the fundamental rights of a citizen, it is not uncommon that there will be criticism particularly against those who are in public field and at whose instance lapses occurred or wrong has been caused to the society. It is true that merely because freedom of speech and expression is made as a fundamental right, that does not mean that the same can be used in any manner. Such expression or speech shall not aim at defaming another person either knowingly or with an intention or knowledge to harm or lower the reputation of a person in the estimation of general public. Further, where it is not shown any deliberate or calculated attempt or intention to defame a person, such a statement, though in the first instance looks as defamation, the context in which it was made is taken into consideration, speaks otherwise, in such cases it is proper to ignore such a statement. The Courts have emphatically held the above proposition in the following decisions :
(i) In Balasubramania Mudaliar's case : AIR1944Mad484 the Madras High Court held thus :
'Though the defamatory imputations made against the complainant are baseless and incorrect, still if they are made by the accused only as a matter of opinion in good faith and for public good after taking due care and caution they are protected by Excep. 9 to S. 499.' (ii) In L. S. Jayappa v. N. S. Shamegowda, 1985 Cri LJ 1283 this Court held as follows :
'The essence of the offence of defamation consists in its tendency to cause that description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures and those inconveniences to which that person is exposed. It is not necessary that actual harm should be caused. It is sufficient if the harm to the reputation of the person to whom the imputation is directed was intended. Thus, before a person is found guilty of the offence of defamation under S. 500, the prosecution has to prove not only the imputation made by the accused but also that the accused made such imputations with intention of defaming, ridiculing or undermining the reputation of the complainant. The background and the circumstances under which such imputations were made are relevant to arrive at a conclusion whether the imputations were intended to be literally conveyed or they were only hurled as abuses. There must be something more than mere abuses from which it could be possible to infer that the imputations were made with such intention of defaming directly or indirectly the complainant. In the absence of any such proof or material, howsoever vituperative the abuses by themselves may not be sufficient to constitute the offence of defamation.' Thus, the Courts held that the abuses themselves may not be sufficient to constitute the offence of defamation. Intention, circumstances, context and other factors shall weigh.
Fifthly, though the learned Sessions Judge accepted the contention of the petitioner/accused-1 that the order of the trial Court can be interfered with for the reason that the learned Magistrate has not stated in the order that he sifted the evidence of the witnesses for the limited purpose of ascertaining whether prima facie case has been made out against the accused, yet he committed a mistake in giving a finding to the effect extracted in page 22 at para 3(o)(vi) supra.
22A. From a perusal of the material available on record and the above discussion, it is clear that the Courts below without taking into consideration the intention of the petitioner/accused-1, the circumstances and the context in which the statement was made and without applying their mind as to whether the news item which made the basis for the complaint was admissible in evidence but acting upon the same have held that the offence alleged has been prime facie established and that the petitioner and the other two accused are liable to be charged and tried for an offence under S. 500, IPC. Such an approach of the Courts below is wholly erroneous and incorrect.
23. The findings given by the Courts below that the offence alleged against the accused for an offence under S. 500, IPC is established are purely based on the news item alleged to have been published in Samyukta Karnataka. The Courts below ought to have examined the said news item along with the memorandum dated 15-4-1983 and the reply given by the petitioner to the notice. If that had been done, it would have been made known that (i) the so-called imputation was neither intentional nor it amounted in lowering the reputation of the complainant in the estimation of general public, and (ii) the context in which such a statement was made.
24. The Courts below also should have considered the entire evidence of the witnesses properly instead of picking out only those portions in the evidence made against the petitioner relying on the statements of the interested witnesses only and thus holding that the offence under S. 499 punishable under S. 500, IPC has been established. Such an approach of the Courts below is wholly unjustified.
25. To the questions posed that some of the documents are inadmissible in evidence, there are contradictions in the statement of witnesses, the admissions made by the witnesses in the statements about their absence in the Press Conference or not properly recording the statement etc., the answers given by the Courts below - particularly the Sessions Court - are quite incorrect. It is not shown that the Courts below considered all the material available on record and then formed an opinion that grounds have been made out against the accused to direct them to face the trial. As far as the order of the trial Court is concerned, the reasons assigned are not at all convincing in nature. Though the order of the learned Sessions Judge answers the points raised by the accused and held that the approach of the trial Court was not correct, yet it committed a mistake in giving a finding at para 26 as extracted at page 22 above.
26. From the discussion made above, it has to be said that the approach of the Courts below in ordering to frame charge against the petitioner and the other two accused for an offence punishable under S. 500, IPC is the resultant of non-application of mind to the material available on record and also resultant of incorrect exercise of jurisdiction conferred. The Courts below should have borne in mind that a person can be charged only when the allegations alleged against him are established prima facie and not otherwise, because in criminal cases the Courts must be very cautious and careful before proceeding to frame charge as unnecessary framing of charge, on the one hand may result in affecting the person's liberty and on the other hand cause continuous and unnecessary harassment, as it has happened in the instant case.
27. From the allegations made in the complaint and the intention to prosecute the accused by pursuing the complaint, the material placed on record and the information gathered at the trial, it is clear that it is a matter of mere prestige for both the parties who, according to their own version, belong to different political faiths. It is not a genuine case of one making any imputation against the other or the other being defamed or his reputation lowered in the estimation of the public. This prolonged and protracted litigation and harassment to both the parties would have been ended in the beginning itself if the Courts below had taken into consideration the effect of S. 245, Cr.P.C. and its applicability to the necessary material on record keeping in mind the basis of the complaint, the admissibility of the documents in evidence and the circumstances and context in which the alleged imputations were made by the petitioner.
28. The next question to be incidentally considered is whether, this Court can grant relief, while exercising the power under S. 482 Cr.P.C., to a party who has not approached this Court. The answer is 'yes'. Because, the main object of S. 482 is to prevent abuse of the process of the Court and to secure ends of justice. In the instant case, challenge to the proceedings is only by the 1st accused/petitioner. The other 2 accused, viz., respondent 2 and 3, have not chosen to challenge the orders passed in the proceedings ordered under S. 246, Cr.P.C. Respondents 2 and 3 though served remain absent and unrepresented before this Court. In the averments made in the complaint there is no single allegation against the other 2 accused. In the circumstances, only the petitioner/accused-1 has sought for quashing the proceedings. From this it is clear that respondents 2 and 3 are not interest in prosecuting these proceedings. Then, the question will be in case this Court comes to a conclusion that the proceedings initiated against the accused deserve to be quashed, whether the proceedings against accused-1/petitioner alone should be quashed or the proceedings against respondent 2 and 3 also shall be quashed. The idea behind seeking discharge is to see that the accused are not put to unnecessary harassment because of the prolonged litigation. A Division Bench of this Court in Irappa alias Veerappa v. State of Karnataka, ILR 1987 Kant 3793 while dealing with the scope of S. 401, Cr.P.C. concerned with the view taken by the Calcutta High Court in Sunilakhya v. H. M. Jadwet : AIR1968Cal266 wherein it was pointed out thus :
'.......... Even if a party does not apply to this Court in revision but the said case be brought before the Court by some other party, nothing would stand in the way of this Court to exercise its revisional or inherent powers to make such orders as may be necessary for the ends of justice. There is no form of injustice that the long arms of the Court cannot reach and the inherent power of the Court is ex debito justitiae to dispense real and substantial justice for the administration of which alone Courts exist ..........'
and held as follows :
'A reading of S. 401 of the new Code makes in manifestly clear that if the matter somehow comes to the knowledge of the High Court and the High Court finds that the order of conviction is unjust, illegal and opposed to principles of law and facts, it is open to the High Court to exercise its revisional jurisdiction or power of superintendence under S. 401 in order to rectify the unjust decision or the injustice that has ensued on account of the improper and illegal conviction. S. 401(4) lays down that if an appeal lies and if no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party, who could have appealed. Therefore, Section 401(4) debars the persons, who had not preferred an appeal, to request this Court to exercise the revisional powers existing in this Court under S. 401. But if the unjust decision or improper conviction has come to the notice of the High Court suo motu or in some other proceeding, that has been initiated in this Court, this Court can suo motu exercise the power of superintendence or revisional power vested in it under S. 401 and remedy the injustice.
For exercising revisional powers suo motu, it is not necessary that the same should be exercised only while deciding the appeal of the other accused persons. Whenever the matter is brought to the notice of the Court in any proceeding whatsoever, either by the State coming in appeal against the order of acquittal or by some other accused person questioning his conviction, this Court cannot refuse to exercise its general power of superintendence or revisional powers while hearing such matters. If this Court refuses to exercise its revisional jurisdiction or power of superintendence, enormous injustice would be caused to an accused, who might not have preferred an appeal, if the unjust or improper or illegal sentence imposed on him is not set aside.
The Court should bear in mind, while exercising jurisdiction under S. 401 of the Code of Criminal Procedure the conviction or the sentence not appealed against, if allowed to stand, would result in the continuation or perpetuation of the unjust decision or in the continuation of an illegal sentence being suffered by a citizen of the country.
Accordingly, proceedings against accused 2 and 3 deserve to be quashed.
29. From the above discussion it is clear that when it is shown that there is abuse of the process of the Court or justice demands interference, this Court can definitely under S. 482, Cr.P.C. interfere with the orders of the Courts below. Secondly, when grounds made out do not suggest any offence, it is proper to discharge an accused as otherwise it leads to unnecessary litigation and waste of public time and money. Further, the consideration of evidence reveals that neither prima facie case made out nor the petitioner had any intention to defame or wound the feelings of the complainant or his family members. Whatever the petitioner had stated was in the public interest. If the Courts below had made a judicious and dispassionate approach to some of the portions of the statements and other relevant material including admissibility or otherwise of such evidence, the finding would have been that no grounds exist in the complaint to suggest that the petitioner had committed an offence punishable under S. 500, IPC. After all in a democratic set up criticism of one's style of functioning is a powerful weapon to make aware the public about one's lapses and to caution and correct acts of such persons. Thus in a democratic set up a person who is in public field shall not be too sensitive and touchy to such criticisms as no one will take such criticisms very seriously or attach any importance to such statement.
30. What importance can be attached to the imputations of the kind, before parting with the case it is proper to bear in mind the observations of the Supreme Court made in Kartar Singh v. State of Punjab : 1956CriLJ945 wherein while explaining the circumstances connecting a person to an offence punishable under S. 500, IPC in the democratic set up, adopted the observations of Cockburn, C.J. in Seymour v. Butterworth (1862) 3 F & F 372 (376, 377)(A). It reads as follows :
'Those who fill a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were undeserved and unjust; yet they must bear with them and submit to be misunderstood for a time' (Per Cockburn, C.J., in 'Seymour v. Butterworth', (1862) 3 F & F 372, (376, 377), and see the dicta of the Judges in 'R. v. Sir R, Carden', (1879) 5 QBD 1. 'Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant, appendage to his office' (Per Bramwell, B., in 'Kelly v. Sherlock', (1866) 1 QB 686 (689). Public men in such positions may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them rather than give an importance to the same by prosecuting the person responsible for the same.'
31. In the circumstances and for the reasons stated above, I think it is a fit case in which this Court should exercise its power under S. 482, Cr.P.C. and quash the orders of the Courts below.
32. Accordingly, this petition is allowed and the order dated 20-7-1991 in Criminal Revision Petition No. 104 of 1989 passed by the I Additional Sessions Judge, Dharwad, sitting at Hubli, as also the order dated 21-1-1989 in C.C. No. 1514 of 1987 passed by the Judicial Magistrate, First Class II Court, Hubli, ordering to frame charge against accused 1 to 3 and all other further proceedings initiated against accused 1 to 3 by the learned Magistrate, Hubli, in C.C. No. 1514 of 1987 are quashed.
33. Petition allowed.