K.D. Ghouri Vs. Bhoio Motawani and anr. - Court Judgment

Excerpt:
penal code - sections 500 & 501--sentence--publication of incorrect news item without malice--sentence enhanced from rs. 50/- to rs. 1000/- in view of harm & mental agony caused to complainant.;we are not inclined to inflict a substantive sentence on the accused motwani for the simple reason that no malice has been shown against him and the accused has also not taken an unfair attitude during the trial of the case or even before that inasmuch as he published a contradiction at the earliest opportunity and did not plead any justification for the impugned news-item in the course of the trial. however we do feel that looking to the harm and the mental agony caused to the complainant who undoubtedly occupied a responsible position in the police department of the government of.....order1. this is a reference by the sessions judge aimer recommending that the sentence of fine of rs. 50/- passed against the respondent no. 1. accused bhojo motwani. editor, 'matribhumi' aimer under sections 500 and 501 i. p. c be enhanced to a substantive sentence of imprisonment for a period of six months and a fine of rs. 200/-. mr. balkishan mohanani has appeared before us on behalf of the accused motwani. he has expressly stated that his client to whom notice has been given of showing cause why his sentence should not be enhanced does not wish to show cause against his conviction. he has, however urged that the sentence passed by the learned additional munsiff-magistrate first class. aimer city east cannot be said to be grossly inadequate and therefore the reference must be.....

Judgment:
ORDER

1. This is a reference by the Sessions Judge Aimer recommending that the sentence of fine of Rs. 50/- passed against the respondent No. 1. accused Bhojo Motwani. Editor, 'Matribhumi' Aimer under Sections 500 and 501 I. P. C be enhanced to a substantive sentence of imprisonment for a period of six months and a fine of Rs. 200/-. Mr. Balkishan Mohanani has appeared before us on behalf of the accused Motwani. He has expressly stated that his client to whom notice has been Given of showing cause why his sentence should not be enhanced does not wish to show cause against his conviction. He has, however urged that the sentence passed by the learned Additional Munsiff-Magistrate First Class. Aimer City East cannot be said to be grossly inadequate and therefore the reference must be reiected. On the other hand Mr. Amrit Kumar appearing for the complainant Shri K. D. Ghouri has hotly contested that the sentence of a fine of Rs. 50/- only imposed by the learned trial court is grossly inadequate and therefore the reference must be allowed.

2. Since the conviction of the respondent Motwani is not being challenged we may notice here only the relevant portion of the article which was published in the issue dated 11th May. 1965. of 'Matribhumi' a daily newspaper published in Sindhi language in the city of Aimer. It is not disputed that Motwani was the editor of this paper. The news-item in question marked Ex. P-1 when translated into English reads as under:

Ajmer's Former Deputy Superintendent Khalil Mohammad Ghauri Arrested on Kutch Border on Allegation of Traitorous ActivitiesNew Delhi From Secret CorrespondentIt is learnt from highly reliable sources that the Derputy Superintendent of Police. City Aimer Shri Khalil Mohammad Ghauri has been arrested on the Kutch Border on allegation of traitorous activities and has been interned.

It is learnt that now a days Shri Ghauri is Commandant Central Reserve Police.

At the time of invasion by Pakistan of Kanjarcot area the Jawans of the Central Reserve Police were guarding the Kutch Border and Ghauri was their Commandant.

It is said that he adopted dilatory tactics so that the Jawans could not face the firing from the enemy side with the result that the Pakstani army was able to seize the Indian territory. It is further learnt from reliable sources that Government of India have interned Shri Ghauri on this allegation.

Further inquires by our Secret Correspondent reveal that Shri Ghauri was hand in glove with the Muslim League from the very beginning. Hp was at last turned out of the State of Bikaner on this ground. All the relations of Ghauri are in Pakistan. His brother is Secretary to the Government of Pakistan. It is said that previously Shri Ghauri was posted on Jammu and Kashmir Border but there also there were complaints of his hobnobbing with Pakistani agents.

3. On account of publication of the aforesaid defamatory article, the complainant Shri Ghauri filed a complaint against Motwani as well as Shri Nanak Ram Israni Printer Publisher and Chief Editor of the said daily paper Matribhumi. Both the accused persons were charged for offences under Sections 500 and 501 I. P.C. The learned Magistrate by his order dated 27-4-1968 acquitted Shri Israni of both the charges; but, as already stated above. Motwani was convicted for both the offences and only a sentence of Rs. 50/- was awarded under both the counts. The complainant has filed an appeal from the order of acquittal against Shri Israni which has been registered as S. B. Criminal Appeal No. 514 of 1968 and will be dealt by us separately and by this order we propose to dispose of the reference against Motwani.

4. In support of his contention that the sentence awarded is grossly inadequate learned Counsel for the petitioner has invited our attention to the following rulings:

Mohammed Nazir v. Emperor AIR 1928 All 321 Ramkumar v. State 1962 (1) Cri LJ 122 All Sahib Singh v. State of U.P. AIR 1965 SC 145 1965 (2) Cri LJ 434, Chaman Lal v. State of Punjab : 1970CriLJ1266 On the other hand learned Counsel for the accused has referred to Dongar Singh v. Krishna Kant AIR 1958 Madhva Pra 216 1958 Cri LJ 1036 and State of Kerala v K. Balakrishna : AIR1961Ker25

5. In AIR 1928 All 321 supra at a time when Hindu Mahomedan differences were very acute a Mahomedan editor published an article under the guise of rumour containing defamatory matter against the complainant who was of perfectly good character perfectly good reputation respected in the town in which he lived a man of position and a man very closely identified with the activities of the Hindu religion. In the article hp was charged with having poisoned his own son and of having done that because the son had wished to become a convert to Islam. On being asked by several persons as to what the publication in the newspaper meant the complainant wrote a letter to the accused in which he set out forcibly but quite properly his feelings of the false and malicious and defamatory attack which had been made upon him and the members of his family. He set out certain conditions upon which he would refrain from seeking his remedy against the accused in the Civil and Criminal Courts. Thereupon the accused instead of expressing at once by a personal letter and in his paper the utmost regret for its publication wrote a letter aggravating the magnitude of the offence. In these circumstances, the learned Judges were pleased to hold that the sentence of six month's simple imprisonment was not in any degree adequate for the offence committed and they enhanced the sentence to simple imprisonment for eighteen months.

6. Again in 1962 (1) Cri LJ 122 (All) it was observed that 'a journalist who wantonly indulges in besmirching the character and reputation of honest persons and insinuations in order to increase the sale of his paper deserves no sympathy'. In that case the accused who was the editor of a Hindi weekly paper was sentenced to six months' simple imprisonment and a fine of Rs. 500/- under Section 500 I. P.C. and it was urged before the High Court on behalf of the accused that the sentence awarded to the accused was too severe and that a sentence of fine alone could meet the ends of justice. In that case even after the publication of the defamatory article the accused deigned to publish letters and articles in his paper 'yogantra' against the complainant which were of a defamatory character. The subsequent issues were also exhibited in the case. It was found by the learned Judge that there was extreme malice behind the defamatory imputations made by the accused and the plea of justification adopted by him was wholly unfounded and was a dangerous plea in a defamation case. In these circumstances the learned Judge hald that the trial Court as well as the lower appellate Court were right in inflicting a sentence of imprisonment. It may be noted that this was not a case of enhancement of the sentence but a case of maintaining the sentence of imprisonment awarded by the Court below.

7. In : 1965CriLJ434 supra the accused had published a defamatory article against the Public Prosecutor and Assistant Public Prosecutors at Aligarh and the plea taken by him was that he had published the news-item for the good of the public. The Sessions Judge convicted the accused under Section 500 I. P.C. and sentenced him to simple imprisonment for six months and a fine of Rs. 100/-. On the question of sentence, their Lordships were pleased to observe, that there did not appear any justification for reducing the sentence and further that when one is proved to have made defamatory comments with an ulterior motive and without the least justification motivated by self-interest, he deserved a deterrent sentence.

8. In : 1970CriLJ1266 supra the High Court upheld the conviction of the appellant under Section 500 I. P.C. and sentenced him to three month's simple imprisonment and a fine of Rs. 100/-. The charge against the accused was that at the time when he was resident of the Municipal Committee, Sujanpur he had made defamatory remarks against the character of the complainant at a public meeting and also wrote a defamatory letter against her character to the Civil Surgeon Gurdaspur. It further appears that the accused pleaded justification for the defamatory remarks. The defence taken by the accused was completely ruled out and his appeal was dismissed. It may be observed that this case contains no discussion regarding sentence.

9. Now coming to the facts of the present case, the complainant has not succeeded in proving any malice on the part of the accused Motwani in publishing the impugned article and no malice was pointed out to us. It further appears that a contradiction was published in the issue dated 13th May. 1965 Ex. D-l wherein it was mentioned that the news of arrest and detention of Shri K. D, Ghauri was baseless and wrong. The paper further expressed regret and felt sorry that the correspondent had misled the editor and the publisher by sending the wrong news and that they had no personal grudge against Shri Ghauri nor had they any intention to defame him by publishing the impugned news. Thus it would be clear in the present case that the accused Motwani did not take the plea of justification and further that he published a contradiction at the earliest opportunity. No malice is also Proved against him. Of the cases relied upon by learned Counsel for the complainant the only case of, enhancement is AIR 1928 All 321 (Supra), where, in the peculiar circumstances and in view of the tense atmosphere prevalent in the city on account of Hindu-Muslim riots and the attitude adopted by the accused, the sentence was enhanced by the High Court.

The other three cases referred to above were not cases of enhancement though a sentence of imprisonment awarded by the trial court was upheld in those cases. In the present case we are not inclined to inflict a substantive sentence on the accused Motwani for the simple reason that no malice has been shown against him and the accused has also not taken an unfair attitude during the trial of the case or even before that inasmuch as he published a contradiction at the earliest opportunity and did not plead any justification for the impugned news-item in the course of the trial. However we do feel that looking to the harm and the mental agony caused to the complainant who undoubtedly occupied a responsible position in the police department of the Government of Rajasthan a sentence of fine of Rs. 50/- is much too lenient and deserves to be enhanced. The name of the correspondent from whom the impugned news is said to have been received has not been disclosed. Therefore it does appear to us that the editor of the paper the accused Motwani, did not act with due care and attention in publishing the impugned news-item and. therefore he does not deserve that amount of leniency which has been shown by the trial court.

10. In the result we partly allow the reference and while maintaining the sentence of fine awarded to the accused Motwani we enhance the amount of fine from Rs. 50/- to Rs. 1000/-. He is granted one month's time to deposit the amount of fine in the trial Court. In default of payment of fine he shall undergo simple imprisonment for a period of six months. The trial court will see that the accused is made to undergo the sentence awarded to him in case he does not pay the amount of fine within the time granted to him.