IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 8207 of 2001 to CRIMINAL MISC.APPLICATIONNo 8257 of 2001 For Approval and Signature: HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PRADIP MADHAWANI EDITOR OF NOBAT DAILY Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 8207 of 2001 MR ZUBIN F BHARDA for Petitioner No. 1-2 Mr A D Oza,PUBLIC PROSECUTOR for Respondent No. 1 MR BP MUNSHI & Mr A M Mehta for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 06/09/2003 JUDGEMENT Rule. M/s. B P Munshi and A M Mehta, learned Advocates appearing on behalf of different respondents and waives service of notice of rule. Mr A D Oza, learned Public Prosecutor appears and waives service of notice of rule on behalf of the State. This is a group of 51 petitions filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Code') by the aforesaid two petitioners in order to pray to quash criminal cases No. 3104, 3105, 3543 to 3552, 3561 to 3570, 3617 to 3642 and 3661 to 3669 of 2001 (in all 51 criminal cases) pending in the court of learned Chief Judicial Magistrate, Jamnagar against the present petitioners filed by the second respondent in each case for offences punishable under section 500 and 501 and 502 read with section 114 of IPC. Incidentally, the first petitioner is the Editor of a daily newspaper published at Jamnagar namely "Nobat". Petitioner No.2 is a person who appears to have given an article for being published in the said newspaper. The said article was actually published in the said newspaper. 2. The facts can be drawn from the complaint filed by the second respondent before the aforesaid Court. There it has been mentioned that the second respondent in each case is an Advocate practising at Jamnagar and elsewhere. There is no dispute about the same. It is stated in the first complaint that the second petitioner is working as President of an Association for protecting the interest of consumers at Jamnagar. It is also stated in the complaint that the first petitioner had published an article in his newspaper "Nobat" on 10.7.2001. That the second petitioner was the author of the said article. It is also stated in the said article that some allegations have been made against the Advocates of Jamnagar in the said article. Some averments from the complaint/article are reproduced as follows: "The Advocates are not honest. Knowing that the case is false, yet many Advocates have been collecting fees and this fact is well known. That they collect the fees in advance and thereafter they do not work." 3. It is also stated in the complaint that the above article of the second petitioner was published by the first petitioner in his newspaper "Nobat" on 10.7.2001 in such a manner that it would attract notice of so many persons. That the said issue of "Nobat" was sold at various places by the first petitioner. It is also contended that the second respondent has been practising as Advocate since long and he has earned good reputation amongst his clients and friends. That on account of the above publication of the above article, the second respondent has been defamed. That the said article was written by the second petitioner and published by the first petitioner with a view to defame the second respondent and, therefore, both the petitioners are guilty of the aforesaid offence. Accordingly the said complaint was filed by the second respondent before the said court for the aforesaid offences. It seems that in the said complaint, the second respondent has given a list of witnesses which can be read from para 8 of the complaint as follows: i. Second respondent himself ii. All office bearers elected for the year 2001 A.D. in respect of Jamnagar Bar Association with Resolution passed by the said Association. iii. Office bearers of the Actual Court Practitioner Advocates' Association elected for 2001. iv. Office bearers of MACP Advocates' Association for the year 2001. v. Office bearers for the year 2001 in respect of Revenue Advocates' Association. vi. The Chairman & Secretary of the Bar Council of Gujarat. vii. The Chairman and Secretary of the Bar Council of India. viii. Chairpersons and Secretaries of all the State Bar Councils of India. ix. All members of Jamnagar Bar Association. 4. After verification on oath, the learned Magistrate directed that the complaint be registered and process of summons be issued against the two petitioners above named for offence under section 500 read with section 114 of IPC. 5. In response to the service of process of summons, the petitioners appeared before the court concerned. They felt that the complaint did not make out a case for offence under section 500 of IPC and, therefore, they have preferred these petitions before this Court under section 482 of the Code. 6. It has been contended by the petitioners that the petitioners had no intention to defame the second respondent in each case. That some fair criticisms were advanced in the impugned article but no offence can be said to have been made out on a bare reading of the complaint and, therefore, the complaint deserves to be quashed. It is also contended that the petitioners have exercised right of freedom of expression of views and freedom of speech. That petitioner No.1 being the Editor of a daily newspaper is also enjoying certain freedom relating to press and, therefore, also no offence can be said to have been made out and, therefore also the complaint in each case deserves to be quashed. It has, therefore, been prayed that the complaint in each case may be quashed in exercise of inherent jurisdiction vested in this Court by section 482 of the Code. 7. Mr Zubin Bharda, learned Advocate has argued the matter on behalf of the petitioners. Mr A D Oza, learned Public Prosecutor has argued the matter on behalf of the State. On the other hand, Mr B P Munshi, learned Advocate has argued on behalf of some of the second respondents in some petitions. Mr A M Mehta, learned Advocate has argued the matter on behalf of the remaining second respondents in remaining petitions. At the outset, it may be clarified that the second respondent in each case has withdrawn his complaint against the first petitioner, the editor of "Nobat" daily with the permission of the trial court, as has been submitted by the learned Advocates for the petitioners as well as learned Advocate for respondent No.2 in each matter. This being a summons triable private complaint, it seems that the learned Magistrate may have found it proper to permit withdrawal of the complaint. The complaint has been withdrawn in all the cases and, therefore, this court is not required to consider these petitions qua the first petitioner. In other words, we will be required to deal with the petition only with respect to the second petitioner in each case. It is not much in dispute that the second petitioner is a resident of Jamnagar and is having his institution for the protection of the interest of the consumers at Jamnagar. We are not very much concerned with the said status of the second petitioner for the purpose of deciding the present petitions. It is not much in dispute that the above article was written by the second petitioner who now remains the only petitioner in the matter. It is also not much in dispute that the said article was published by the first petitioner in his daily "Nobat" dated 10.7.2001. The contents of the said article have to be accepted as they stand. We will, therefore, be required to consider whether an offence punishable under section 500 has been made out, even prima facie, on a bare reading of the said article. Since the said article was published in vernacular language, a request was made to provide English version of the said article. Learned Advocate for the petitioners has provided an english version of the said article. He has also provided a copy of English version of the complaint, which is also in vernacular language. With a view to appreciate the contents of the said article, it would be worthwhile to reproduce the English version of the article written by the second petitioner and published by the first petitioner in his daily newspaper "Nobat" dated 10.7.2001 as under: 7.1. "DISTRICT JUDGE MAY TAKE STRICT STEPS AGAINST THE UNLAWFUL STRIKE OF THE ADVOCATES : REQUESTS THE CONSUMER FORUM 7.2. The Consumer Interests Protection Forum, by stating that, on account of indefinite strike of the Advocates going on since last many days in the courts of Jamnagar, the people desirous of seeking justice have been suffering loss, has requested the District Judge to take immediate measures against the unlawful strike going on at the risk and cost of the litigants who have paid fees in advance. 7.3. In a statement in this regard, Shri Ramnikbhai Ganatra, President of Consumer Forum has stated that the delay in the Judicial process is a serious problem of the public and one of the many causes is insufficient number of courts. In this situation, when the Bar Association by stating that injustice has been done to the Jamnagar District by closing the working courts, has resorted to the strike, it is a question as to how far bonafide is this strike. Apart from the insufficient courts for delay in justice, one of the many reasons is the dishonesty of the Advocates themselves. It is well-known that although it is within the knowledge of the Advocate that the case is bogus, many advocates are charging fees for extension of date and when such Advocates take the flag of justice in the name of the public to fight is laughable. 7.4. It is an offence in law to delay the work after taking money in advance and it applies specially to the Advocates who are called the officers of the Court. Therefore, the different High Courts and even Supreme Court have also held that the Advocates have no right to resort to strike. On account of the strike of the advocates, there is possibility of the cases which have come up for hearing after years being delayed again. Number of people who come from far away places to attend on the date of the case have to face many hardships and then a question arises that whether by taking legal action against such unlawful strikes, it is the responsibility of any one to protect the public who is waiting for justice. 7.5. The noteworthy exaggeration of dishonesty of the strikes of the advocates is that "urgent business" has been exempted. It is required to understand the definition of this urgent business, e.g. if any accused has got to be released on bail or new case has to be filed, in short, any such matter where cash fee is receivable, is called urgent business. To make it clear, by taking care to see that the business of the advocates is not hurt in the strike, such issues are raised with a view to gain cheap publicity. 7.6. When the Supreme Court itself has held such dramas of advocates' strike, which are run frequently at the cost and risk of helpless litigants who pay fees in advance and confined to such litigants only, as unlawful, it is necessary that the District Judge of Jamnagar may take stringent measures to see that the strike of advocates going on for many days is brought to an end." 8. In order to appreciate the above position, it will be required to consider that the Members of the Bar Association of Jamnagar felt that the Judicial Officers in the District Court at Jamnagar were inadequate in number and, therefore, they requested the High Court of Gujarat on its administrative side to appoint more number of Judges in the District Court at Jamnagar. It seems that the request made was not accepted at the first instance and, therefore, the request was repeated also. Ultimately, the Jamnagar Bar Association passed a Resolution that if adequate number of Judicial Officer is not posted within the stipulated period, then they would proceed on strike. Despite said resolution, it appears, the strength of Judicial Officers at Jamnagar was not increased and therefore, the said Association decided to proceed on indefinite strike on and from 1.7.2001. Accordingly they proceeded on strike w.e.f. 1.7.2001 for an indefinite period. These facts have note been disputed for the purpose of these petitions. It seems that in the above article, couple of words have been used and it has been stated in it that the advocates have been doing "Rokadi". This is one of the words which appears to have offended the members of the Bar. Even, learned Advocates for the contesting respondents have also emphasized on this word stating that this is a derogatory word and it clearly amounts to exhibiting and demonstrating the intention of the second petitioner to defame the Advocates practising at Jamangar. 9. Now, the said word is required to be read and considered in the background of the record and proceedings of the matter. The President of Jamnagar Bar Association is the complainant in the first complaint filed by him. He is also the second respondent in the first petition before this court. There is no dispute about the same. This President of the Bar Association has filed an affidavit before this court stating that though the Advocates were on strike for few days at Jamnagar, on account of inadequate number of Judicial Officers in the District Court, Jamnagar, the Advocates did carry out certain functions. There it has been stated that the Advocates were dealing with interim relief applications and applications for enlargement of accused on bail. Mr Patel, the President of the Bar Association has thereby shown that the Advocates, though on strike, were still available for rendering their services in urgent matters of the above nature. 10. Now as against this, it has been stated at the Bar that the interim relief applications under Order 39 of the C.P. Code, 1908 and applications for enlargement of accused on bail are the matters which are promptly dealt with and disposed of also promptly. Thereby the fees of the Advocates would be released very soon. So far as the other cases are concerned, they would be delayed since evidence would be required to be recorded after receiving written stattements and after framing of issues in those cases. However, so far as bail applications and applications for interim relief are concerned, no evidence is required to be adduced and the matters are required to be disposed of on the strength of documents and affidavits. Therefore, those matters are being promptly attended and disposed of by the trial court also. This fact cannot be seriously disputed. Applications for bail and applications for interim reliefs are naturally taken up, dealt with and decided very promptly. Therefore, fees of the Advocates may be released very soon and very promptly. There is no reason to defer from the above inference. Even the advocates engaged for a limited purpose of arguing bail applications and interim relief applications may also be relieved very soon. This situation was not disputed during the arguments. 11. If the matters in which the fees are promptly released were taken up by the Advocates even during the period of strike, it might have given an impression to the author of the impugned article that this is just like cash crop in agricultural field and on the basis of such an impression the word "Rokadi" appears to have been mentioned in his article by the second petitioner. Looking to the above fact and looking to the surrounding background, it is not possible to accept that this is a defamatory word. A word may be defamatory and it may not be defamatory but it is required to be considered whether a particular word has been used in a particular background. Hence the word "Rokadi" appears to have been used in the aforesaid surrounding circumstances and looking to the said surrounding circumstances, it cannot be said even prima facie, that the author of the article intended to defame the members of the Jamnagar Bar Association. It is required to be considered that the priority of the above two categories of cases was decided by the members of the Jamnagar Bar Association themselves. It is not the case of the contesting respondents that they were agreeable to deal with the following cases. i. Sessions and Criminal cases of under trial prisoners, ii. Civil and criminal cases of Senior Citizens, iii. Cases under the Prevention of Corruption Act wherein the accused may be under suspension, iv. Cases of maintenance for women and children, v. Cases of implementation of maintenance order already passed in favour of women and children, vi. Criminal revision applications challenging order of maintenance for women and children, vii. Cases of custody of children, viii. Oldest civil and criminal cases pending with the court concerned, ix. Cases of dismissal, removal and termination of service wherein the person concerned may not be in job and may be suffering on account of jobless condition, x. Old motor accident claim petitions of road accident victims or their legal representatives. xi. Cases of physically handicapped persons, xii. Cases of mentally retarded persons, xiii. Cases of persons under other legal disabilities. xiv. Cases of matrimonial/family disputes. The above cases may not be promptly disposed of. It is not the case of the second respondent in each case that the above referred cases were treated as urgent and important cases and they were also being dealt with by the members of the Bar during the time of strike. This is again a background in which one has to read the word "Rokadi". Therefore, it can also be said that the members of Jamnagar Bar Association opted to deal with only interim relief applications and bail applications during the course of strike. But they did not find it proper to treat the above types of cases to be urgent and important for being dealt during the course of strike. This is also a matter of background under which the author of the article appears to have been prompted to use the word "Rokadi" meaning thereby Advocates were taking up only those matter in which the fees were being promptly and shortly paid. In that view of the matter, the use of the word "Rokadi" cannot lead us to believe that the second petitioner intended to defame the members of Jamnagar Bar Association by using the said word in the said article published on 10.7.2001. 12. Another word used is found to be "Dindak" in the said article. Here also it is required to be considered that the Advocates were on strike and they were dealing only the above types of cases of interim relief applications and bail applications. A query was put to the learned Advocates for the contesting respondents as to whether the offices of the Advocates remained closed during the period of strike. Learned Advocates for the said respondents were unable to reply stating that there was no instruction from their clients on the above point. However, when it is a matter of affidavit of the President of the Bar Association that the members of the Bar Association used to deal with interim relief and bail applications, it has to be inferred that the members of the Bar Association must have been keeping the offices open. Otherwise they would not be in a position to deal with the aforesaid cases. Therefore, on the one hand, the Advocates showed themselves to be on strike and they abstained from court work, on the other hand, they attended matters of interim relief and bail applications and in order to deal with those cases, it appears that they did not keep their office closed during the period of strike. In view of the above background, again, it can be said that the word "Dindak" may have been used by the second petitioner and the second petitioner must have carried such an impression in his mind while using the said word. 13. Now so far as the other allegations are concerned, those allegations and even the aforesaid two words appear to have been used in a general way criticizing the Advocates at large stating that the Advocates were not honest, that though they knew that the cases were false, they used to collect fees from the clients and thereafter, they did not use to work etc. These are the allegations which have been made in general against the Advocates at large. It seems that by and large the allegations made in the said article dated 10.7.2001 did not relate only to the members of Jamnagar Bar Association, there is no reason to infer that this article and the averments therein were aimed at the members of Jamnagar Bar Association. No single incident has been pointed out from the said article in order to justify an argument that the allegations and averments made in the article were aimed at the members of Jamnagar Bar Association. In that view of the matter, when the allegations are very general in nature and when the averments did not go to show that they were aimed only at the members of Jamnagar Bar Association and when the complaint shows a list of witnesses as above, it has to be accepted that even the second respondent in each petition felt that it would amount to defamation of the entire bar at large in India. In that case, it has to be accepted that the averments have not been aimed at the members of Jamnagar Bar Association only and when the averments are aimed at a large number of people which are not identifiable, then in that event, it would not be open to the second respondent to state that the averments and allegations made in the article were aimed at the members of Jamnagar Bar Association only and that this was done with an intention to defame the members of the Jamnagar Bar Association and by the said article, members of the said Association have, in fact, been defamed. When some allegations and averments have been placed in the article and when it is found that they are very general in nature, it was not proper on the part of the members of the Jamnagar Bar Association to take it that the said article is aimed only at them. It is true that the article in question was published at the time when the Jamnagar Bar Association was on strike. At the same time, when such an occasion arises, people may issue articles for criticizing the general conduct of the persons on strike. Therefore, it is not acceptable that the said article was aimed solely to defame the members of Jamnagar Bar Association. It is required to be considered that so far as the complaint against the first petitioner is concerned, it is withdrawn by concerned complainant before the trial court in all case; since the first petitioner has published an article in his daily newspaper "Nobat" stating that it was never the intention of the first petitioner to defame the members of the Bar Association at Jamnagar. Even the second petitioner has stated in this group of petition that he never intended to defame the members of