1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.247 OF 2001 Bennett, Coleman & Co. Ltd. And others Applicants versus Vilas Ramchandra Jambhekar and others Respondents Mr.Amit Desai, Sr.Counsel i/by Ganesh Bhujbal with Prakash Naik for applicants. Ms.Smita Gaidhani for respondent no.1. Mr.H.J.Dedhi, APP for State. CORAM : A.S.OKA, J. DATE : 09th June 2009 ORAL JUDGEMENT :- 1. Heard learned Senior Counsel appearing for the applicants. Yesterday when this application was called out, none appeared for the first respondent. Therefore, the criminal application was kept today. I have heard learned senior counsel for the applicant. None appears for the first respondent. 2. By this application under section 482 of the Code of Criminal 2 Procedure, 1973 (hereinafter referred to as “the said Code”), the challenge is to the order of learned Magistrate by which process was issued on a private complaint filed by the first respondent alleging commission of offence punishable under section 500 of the Indian Penal Code. 3. At the outset the learned senior counsel appearing for the applicants has invited my attention to the averments made in paragraph no.6 of the application. There was an earlier application filed by the applicants invoking section 482 of the said Code for quashing the same complaint. The said application being Criminal Application No.1881 of 1994 was dismissed for non prosecution by order dated 4th February 2000 by this Court on the ground that the applicants did not supply the correct and detailed address of second and third respondents in the said application. The learned senior counsel pointed out that the second and third respondents in the said applications were formal parties being the co-accused. He placed reliance on a decision of the Apex Court in the case of Krishna Narain Lal and another Vs. State of Bihar and another (AIR-2000- SC-3612). He submitted that there is no bar against entertaining a second application under section 482 of the said Code. 4. He invited my attention to the averments made in the complaint 3 filed by the first respondent and submitted that no case was made out for proceeding against the accused. He has placed reliance on a decision of the Apex Court in the case of G.Narasimhan and others Vs. T.V.Chokkappa (AIR-1972-SC-2609). He, therefore, submitted that apart from the fact that no case for proceeding against the applicants was made out, the first respondent had no locus to maintain the complaint. 5. After dictation of the judgement was commenced the learned counsel for the first respondent appeared and at that stage she has been heard. Her first objection is that second application under section 482 of the said Code cannot be entertained in view of dismissal of the first application. She submitted that only on this ground the application will have to be dismissed. She invited my attention to the averments made in the complaint and submitted that prima facie case to proceed against the accused was made out. She invited my attention to the exceptions carved out to Section 499 of the Indian Penal Code (hereinafter referred to as “the Penal Code”) and submitted that even assuming that the case made out by the applicants is true, it does not fall in any of the ten exceptions. She submitted that the words written below the cartoons were calculated to harm the devotees of Lord Rama as a class. She invited my attention to exception 2 of section 499 of the Penal Code. She 4 submitted that in any case whether any exception provided under section 499 is attracted or not will have to be decided only at the stage of trial and on the ground that the case does not fall within one of the exceptions, the case cannot be quashed at this stage. She placed reliance on the decision of this Court in the case of Angele G. Pereira Vs. Dr.Leon D’Souza and another (1998-Cri.L.J.-569). She has also placed reliance on the decision of this Court in the case of Mammen Mathew Vs. Muniel Kumar and another (2004- Cri.L.J.-852). Lastly, she placed reliance on the decision of the Apex Court in the case of Balraj Khanna and others Vs. Moti Ram (AIR-1971-SC-1389). She submitted that the accused will have to face trial and at this stage no interference is called for. 6. I have carefully considered the submissions. The allegation of defamation in the complaint are based on cartoons published on 9th February 1993 simultaneously in dailies Maharashtra Times, The Times of India and Nav Bharat Times. The said cartoons were drawn by accused no.8 (applicant no.4) who is a well known cartoonist. The first respondent felt offended by the caption printed below the cartoons. The English version thereof printed in daily Times of India reads thus :- “Can’t you set ablaze a simple scooter quickly before the police appear? What sort of Ram devotee are you?” 5 7. The process was issued for the offence punishable under section 500 of the Penal Code. It will be necessary to refer to the averments made in the complaint. In paragraph 1 of the complaint it is alleged that the caption below the cartoon was objectionable, unnecessary and shameful and offended the religious sentiments. Paragraph no.3 refers to the fact that the first respondent is undoubtedly a Rama devotee and he is honourable and respected citizen of India. It is stated that the first respondent is an advocate by profession. Paragraphs 4 and 5 of the English Translation of the complaint read thus :- “4. It is clear that the objective of all the accused in printing this is to defame all devotees of Rama because this caption means that one who cannot put a scooter ablaze and that too before the police arrives, cannot be a devotee of Rama. This means Rama devotees are criminal minded who spoil public property and who don’t give respect to the law. This seems to be the understanding of all the accused. 5. As stated above, the complainant himself is a devotee of Rama and as there lines are applicable to him the complainant has been put to a loss which can never be recovered. Because of this, the complainant has filed a case against all the accused under IPC 120-B, 500, 501 and 502 along with Clause 34.” 8. It must be borne in mind that the cartoons were published in daily newspapers on 9th February 1993. In ground (F), the applicants have stated that the cartoon was published soon after there were riots 6 in the city of Mumbai following the agitation arising out of the demolition of Babri Masjid at Aayodhya. In ground (F) it is contended that gundas and anti social elements were dabbling in riots using violence and mischief pretending to be doing so in the name of Lord Rama and in fact by impugned cartoons the fourth applicant intended to show that the elements involved in the riots were in fact degrading the devotees of Lord Rama. Thus, the first contention in short is that on plain reading of the alleged objectionable sentences printed below the cartoons, no offence under section 499 is made out. 9. Section 499 of the Penal Code reads thus :- “499. Defamation.- Whoever, by words either spoken or intende3d to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.” 10. A perusal of the complaint shows that the first respondent has not even alleged that publication was made by the accused intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of the complainant. The allegation is that the object of the accused was to defame all devotees of Rama. Thus, reliance has been placed on Explanation-I which provides that there can be a defamation of collection of persons. The cartoon shows two 7 anti social persons involved in rioting. The one of the two persons is shown trying to set a scooter on fire in presence of a common man. The other person is shown running away from the scooter. The person running away is posing the question printed below the cartoon to the other person who is trying to set the scooter ablaze. If the cartoon is read along with the caption printed below by which the first respondent felt offended, it is apparent that the intention of the 4th applicant was to ridicule the violence and riots by the so called devotees of Lord Rama. Reading the caption along with the cartoon as it is by no stretch of imagination it can be said that there is any criticism of any genuine devotee of Lord Rama. The attempt of the cartoonist is to ridicule the persons indulging in riots in the name of Lord Rama. Apart from the fact that there are no material averments in the complaint, it is impossible to say that the cartoon has been drawn and published with the intention to harm the devotees of Lord Rama or knowing or having reason to believe that the same will harm the reputation of the devotees of Lord Rama. All that is pleaded in the complaint filed by the first respondent is that the accused want to depict the devotees of Lord Rama as criminal minded who spoiled the public property and who do not have respect to law. The said allegations have been made obviously without understanding the purport of the caption below the cartoon. Therefore, on plain reading of the complaint no case was made out to proceed against the 8 accused. Therefore, it is not necessary to deal with the submission whether the case is covered by one of the exceptions of section 499 of the Penal Code. 11. The learned counsel for the first respondent relied upon Explanation-(2) forming part of Section 499 which provides that it may amount to defamation to make imputation concerning a company or an association or collection of persons as such. The contention is that the cartoon and the caption below the cartoon is intended to harm the reputation of the devotees of Lord Rama as a class being a collection of persons. On this aspect the learned Senior Counsel appearing for the applicants has relied upon a decision of the Apex Court in the case of G.Narasimhan and others Vs. T.V.Chokkappa (supra). In the said decision the Apex Court had an occasion to consider the meaning of “aggrieved person” under section 198 of the Code of Criminal Procedure, 1898. Section 199 of the present Code is pari materia with section 198 of the old Code. The Apex Court observed that when Explanation-2 of section 499 is relied upon, the identify of the association or collection of the persons must be established so as to be relatable to defamatory words or imputations. In the present case the complainant claims that the devotees of Lord Rama as a class were offended by the cartoon and the caption below the cartoon. The association or collection of persons with a view to attract 9 Exception (2) has to be determinate and an identifiable body. Paragraphs 20 and 21 of the decision of the Apex Court reads thus:- “20. That being so the High Court completely missed the real issue, viz. whether the conference was a determinate and an identifiable body so that defamatory words used in relation to the resolution passed by it would be defamation of the individuals who composed it, and the respondent, as one such individuals and chairman of its reception committee could maintain a complaint under S.500 of the Penal Code. Whether the Drivada Kazhagam was an identifiable group or not was beside the point, for, what had to be decided was whether the conference which passed the resolution in question and which was said to have been distorted was such a determinate body, like the Rashtriya Swayam Sevak in Tek Chand’s case, 1969 Cr. L.J. 536 (ALL) or the body of public prosecutors in Sahib Singh Mehra’s case, (1965)2-SCR 823 = (AIR 1965 SC 1451) as to make defamation with respect to it a cause of complaint by it s individual members. In our view the High Court misdirected itself by missing the real and true issue arising in the applications before it and deciding an issue which did not arise from those applications. The judgement of the High Court, based on an extraneous issue, therefore, cannot be sustained. 21. In this view of the matter, we would have ordinarily remanded the case to the High Court. But such a procedure appears to be unnecessary as in our view, the conference was not such a determinate class like the one in the cases referred to earlier, where complaints by its individual member or members were held maintainable. It is impossible to have any definite idea as to its composition, the number of persons who attended, the ideas and the ideologies to which they subscribed, and whether all of them positively agreed to the resolution in question. The evidence simply was that the person presiding it read out the resolution and because no one got up to oppose it, it was taken as approved of by all. The conference clearly was not an identifiable or a definitive body so that all those who attended it could 10 be said to be its constituents who, if the conference was defamed, would, in their turn, be said to be defamed.” 12. The devotees of Lord Rama as pleaded by the complainant cannot be said to be a definitive and/or identifiable body because it is impossible to have any idea of the composition, ideas and ideologies of so called collection of persons. Therefore, in the present case, Explanation-2 to section 499 was not at all applicable. 13. In any event, it is already held that on plain reading of the caption together with the cartoon and averments made in the complaint, no case for proceeding for the offence of defamation was made out. 14. Now that takes me to the technical objection raised by the counsel for the first respondent. It is true that there was an earlier application filed for quashing by the applicants. This Court issued Rule on the said application. By order dated 4th February 2000 the said application was dismissed for non prosecution as notice could not be served to second and third respondents therein who were not the contesting parties in the sense that they were co-accused. The earlier application for quashing filed by the applicants was not decided on merits. On this aspect the observations made by the Apex Court in the case of Krishna Narain Lal and another (supra) will squarely apply. 11 This was a case where a petition under section 482 of the said Code was filed for quashing by the appellants which was dismissed for default. Therefore, a fresh application was filed for the same relief. The said fresh application was dismissed on the ground that earlier application was dismissed. The Apex Court upheld the contention of the appellants before it that as the earlier application was dismissed for non prosecution or default, the subsequent application for the same relief was maintainable and the same ought to have been heard on merits. Therefore, there is no merit in the objection raised by the advocate for the first respondent. 15. Therefore, the petition must succeed and I pass following order :- (a) Rule is made absolute in terms of prayer clause (b). (A.S.OKA, J.)