IN THE HIGH COURT OF DELHI Crl.M.C.No.35/2005 # Mrs.Shobhana Bhartia & Ors. ........ Petitioner ! through: Mr.D.C.Mathur, Sr. Advocate with Mr.Sandeep Mittal, Ms.Meghna Mishra, Advocates VERSUS $ NCT of Delhi & Anr. ........ Respondent ^ through: Mr.Sunil Malhotra with Mr.S.K.Sareen, Mr.Sohail Khan, Mr.Pawan Mishra, Advocates Mr.Baldev Malik for the State Crl.M.C.No.350/2005 # Vineet Jain ........ Petitioner ! through: Mr. Mr.R.K.Handoo with Mr.Manish Shukla, Advocates VERSUS $ NCT of Delhi & Anr. ........ Respondent ^ through: Mr.Sunil Malhotra with Mr.S.K.Sareen, Mr.Sohail Khan, Mr.Pawan Mishra, Advocates Mr.Baldev Malik for State Crl.M.C.No.2188/2005 # Ram Kirpal Singh ........ Petitioner ! through: Mr.R.K.Handoo with Mr.Manish Shukla, Advocates VERSUS $ NCT of Delhi & Anr. ........ Respondent ^ through: Mr.Sunil Malhotra with Mr.S.K.Sareen, Mr.Sohail Khan, Mr.Pawan Mishra, Advocates Page Nos.1 of 36 Mr.Baldev Malik for State Crl.M.C.No.3898-99/2005 # Sanjay Gupta & Anr. ........ Petitioner ! through: Mr. Manoj Goel, Mr.Joginder Sharma, Mr.Wajeeh Shafiq, Mr.Gopal Verma, Ms.Rajni Yadav, Advocates VERSUS $ NCT of Delhi & Anr. ........ Respondent ^ through: Mr.Sunil Malhotra with Mr.S.K.Sareen, Mr.Sohail Khan, Mr.Pawan Mishra, Advocates Mr.Baldev Malik for State RESERVED ON: 20.08.2007 % DATE OF DECISION: 21.09.2007 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? Y 2. To be referred to the Reporter or not? Y 3. Whether judgment should be reported in Digest? Y : PRADEEP NANDRAJOG, J. 1. A person is identified by his name. His name may have no value to society but would be precious to the person concerned. A good name is better than great riches. Shakespeare’s Othello, Act III, Scene 3,167: “Good name in man and woman, dear my lord, Is the immediate jewel of their souls; Who steals my purse, steals trash; ‘tis something, nothing; Page Nos.2 of 36 ‘T was mine, ‘tis his, and has been slave to thousands; But he that flinches from me my good name, Robs me of that which not enriches him, And makes me poor indeed.” 2. Laws of defamation aims at protecting the name and goodwill of a person in society. 3. Backdrop facts giving rise to the present petitions are that in the year 2000 the Central Bureau of Investigation (CBI) registered a case against some employees of DDA who were allegedly involved in a housing allotment scam. Smt. Usha Ravichandran, Senior Personal Secretary to Commissioner (Personnel) was also accused of being involved in the scam. Thereafter, all the employees booked as accused by CBI including Smt. Usha Ravinchandran were suspended. (Usha Ravichandran was suspended on 16.11.2000) 4. Subsequently, on 15.6.2001 suspension of Smt. Usha Ravichandran was revoked and she was reinstated. It is pertinent to note that Smt. Usha Ravichandran was the only suspended employee to be reinstated. 5. On 4.5.2001, a news item appeared in the New Delhi edition of the newspaper ‘Navbharat Times’. English translation of said news item reads as under: - “RESENTMENT AMONGST THE EMPLOYEES OF DDA OVER REVOCATION OF SUSPENSION OF USHA RAMCHANDRAN Senior Correspondent, New Delhi. Page Nos.3 of 36 There is a grave resentment among the employees of DDA over the news of revocation of suspension of Usha Ramachandran, Private Secretary to Commissioner (Personal) DDA who is accused of bungling to the tune of several crores in allotment of DDA flats. The CBI conducted raids in the month of November last year at the offices and residential premises of several officers of DDA including this woman employee. A huge amount of cash, document relating to DDA houses were recovered from the possession. CBI had registered a case against these officers after the recovery of this property. According to leaders of the employees it is improper to revoke the suspension of only one accused out of seven accused persons by the officers of DDA without obtaining permission from CBI. They alleged that this has been done at the behest of high level political recommendation. According to sources this file has been sent to Chief Vigilance Officer of DDA on Thursday evening after taking decision to revoke the suspension of Usha Ramchandran. Now orders in this regard have to be issued from there. According to sources that, being aware of the mysterious aspects of this matter all the officers of DDA are reluctant to take decision on revocation of suspension of Usha Ramchandran and of becoming a party to this decision, but they are being forced to do this by pressure of above.” 6. On 21.6.2001, a news item appeared in the daily edition of the newspaper ‘Hindustan Times’. Said news item reads as under: - “Scam-tainted DDA staffer gets her job back Page Nos.4 of 36 Aruna P.Sharma New Delhi, June 20 A DDA employee facing Central Bureau of Investigation (CBI) probe in connection with housing scandal, which broke out last year, has been reinstated. The orders revoking suspension have been issued despite opposition from the CBI officials who were yet to complete their inquiry and finalise report. The personal secretary of Commissioner, Personnel, Usha Ravichandran is the only employee under investigation who has been reinstated while others continue to be under suspension. The CBI had raided the premises of Usha and a number of employees last November in connection with fraudulent allotment of flats and illegal refunds. She along with Ashok Kapoor, personal Secretary to the then Vice Chairman, Director Housing V.K. Shinged and others were suspended following raids in their offices and residential premises. A CBI official on condition of anonymity said there was pressure from the very beginning to reinstate Usha. The last request for giving her clean chit came about two to three months ago but after that we have not been approached, the official said. He added that there was evidence against Usha who was apparently a conduit for receiving payments for making favourable transfers and postings. One of the accused M.L.Ahuja, Assistant Director Social Welfare had confessed to the investigating officials that he made regular payments to Usha for transfers and postings. Payment slips in the name of Usha were also found at Ahuja's premises. Ahuja's son Mohit is a Page Nos.5 of 36 property dealer and was doing housing related work, the official added. The reinstatement of Usha, who is allegedly close to the Commissioner, Personnel, has sparked off Personnel, has sparked off resentment in DDA. Some of the employee union members said that there is little hope of tackling corruption if senior officials bend backwards to reinstate their favourites. They pointed out that the reinstatement had been made in spite of clear instructions from the Central Vigilance Commission that clearance is required from the agency on whose recommendation suspensions have been made; in this case the CBI. They also said that she had reported back to Personnel Department on rejoining and had proceeded on leave immediately. When contacted Vice Chairman of DDA, Prasanna Hota said that the reinstatement was made, as there was dire shortage of personal secretaries in DDA. It was made after consulting the CVC. Finance Member Laxman Rao had also gone into the merits of the case. Asked why only one suspended employee was reinstated, Mr. Hota said that if others made representation, their cases would also be considered. In the absence of evidence against Usha, she was reinstated, Vice Chairman said. She has, however, not been posted in Personnel or Housing departments, he pointed out.” (Underlining emphasized) 7. On 24.6.2001, a news item appeared in the New Delhi edition of the newspaper ‘Dainik Jagran’. English translation of said news item reads as under: - “HOUSING ALLOTMENT SCANDAL Page Nos.6 of 36 Many questions take birth with the reinstatement of Private Secretary Naveen Gautam New Delhi: 24thJune. With the secret reinstatement of Private Secretary to the Commissioner (Personnel) of Delhi Development Authority, accused in Housing-Allotment Scandal, many questions are being raised. Whereas on the one hand, the Private Secretary's proceeding on leave just after taking charge after her reinstatement is a hot topic of discussion amongst the D.D.A. employees, on the other hand, other D.D.A. employees named as accused in the said Scandal have reason to rejoice. They hope that they would also be reinstated. On seeing the said charged officials, people have started guessing as what will be the result of the Enquiry of Housing Allotment Scandal. It is worth consideration that in connection with Houses Allotment Scandal, C.B.I. last year on 10th November, while making raid at Vikas Sadan, the Head Office of D.D.A., had registered cases against about a dozen persons, who were immediately suspended by the Authority. The suspended officers included the then Director (Housing) V.K.Singh, Personal Secretary to the Vice-Chairman, Ashok Kapur, Joint Commissioner (Housing-Self Financing Scheme) M.S.Sharma and also Usha Ravichandran, P.S. to the Commissioner (Personnel). Last week Usha Ravichandran was secretly reinstated. But for the time being she has proceeded on leave after taking charge. Her reinstatement has become a topic of discussion amongst the D.D.A. Officials. It is said that even after her suspension, Smt. Ravinchandran used to visit D.D.A's Head Office. She continued to visit the Authority's Head Office every after two/three days and she often used to sit in the room of the Commissioner (Personnel). Her visits to Vikas Sadan even after suspension are also confirmed from her car number entered in the register of Page Nos.7 of 36 Security Guards. It is also a hot topic of discussion amongst the officials that Arvind Kumar, Commissioner (Personnel) has played a key role in the reinstatement of Smt. Chandran. The sources of the Authority, while raising fingers at her reinstatement, state that last year in the months of June-July an examination for promotion from L.D.Cs to the posts of U.D.Cs was held. The right of checking the said examination-papers was of the Director (Nazarat) Mr. Jha. But Usha Ravichandran was given authority by the Director to check the copies related to the exam, which was out of her power. C.B.I. during the raids had also seized the said copies and when the marks made thereon were got examined by Hand-Writing Expert, it became clear from the said examination report that the said marks were given by Smt. Ravichandran. Sources say that during the checking of copies of the said exam, lot of irregularities were made in which sixty L.D.Cs were promoted as U.D.Cs. It is a topic of discussion that when an enquiry is under process then what is the justification of her reinstatement? It is more specific that her reinstatement has been made by Member (Finance) Laxman Rao, after clearance given by Joint Director (Vigilance) D.D.A, which is totally illegal. Whereas the right to give clearance is only vest with the Chief Vigilance Officer. Besides that, C.B.I., while raiding the Sheikh Sarai flat of Smt. Chandran, had made an adverse report regarding unauthorizedly constructed room on the roof-top and as well as the photographs thereof were taken. When the said matter is also still under enquiry, then what is the justification of reinstatement? Not only the C.B.I has also seized those documents, by which 32 Work Assistants (Electricity Division) were directly promoted as Junior Engineers. The sources disclose that the said matter is also under investigation. Well, whatever may be the result, but by the reinstatement of Usha Ravichandran, other suspended employees are very much hopeful. They now feel that they will also be reinstated soon. For that some officers had been visiting Vikas Sadan from the very beginning. Amongst Page Nos.8 of 36 whom is also Assistant Director M.S.Ahuja. His visits are confirmed from the register of the Security personnel of D.D.A., wherein the number of the vehicle is entered. However, from the said action of reinstatement, the employees of D.D.A have now started admitting that the enquiry of Housing Allotment Scandal will surely be effected.” 8. Alleging that the afore-noted news items are defamatory and had directly or indirectly harmed and injured her reputation, Smt. Usha Ravichandran, chief protagonist of said news items filed three complaints under Sections 499 and 500 of the Indian Penal Code, 1860. 9. Pertaining to news item published in the ‘Hindustan Times’, complaint was filed against following three persons: - (i) Shobhna Bhartiya ……….. Managing Director (ii) Vir Sanghvi ……….. Chief Editor (iii) Aruna P. Sharma ……….. Correspondent 10. Pertaining to news item published in the ‘Navbharat Times’, complaint was filed against following two persons: - (i) Vineet Jain ………... Managing Director, Benett Coleman & Co (ii) Ram Kirpal Singh ………... Editor 11. Pertaining to news item published in the ‘Dainik Jagran’, complaint was filed against following three persons: - (i) Narendra Mohan………. Chairman and Managing Director (Since died) (ii) Sanjay Gupta ………. Chief Editor Page Nos.9 of 36 (iii) Naveen Gautam ………. Reporter 12. Vide order dated 1.2.2002, accused in all the three complaints were summoned by the learned Metropolitan Magistrate to face trial for an offence under Section 500 of the Indian Penal Code. 13. By way of above captioned petitions, the petitioners invoke the inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, 1973 to quash the summoning order dated 1.2.2002. Details of the said petitions are as follows: - S. No. Crl. M.C. No. Names of Petitioners 1. 35/05 Shobhana Bhartiya, Vir Sanghvi, Aruna P. Sharma 2. 350/05 Vineet Jain 3. 2188/05 Ram Kirpal Singh 4. 3898-99/05 Sanjay Gupta, Naveen Gautam 14. Principal contention advanced by the petitioners is that the said news items are neither defamatory nor have been made with reckless disregard for the truth. Counsel for the petitioners contended that true facts have been reported in the news items in question. It was further contended that it is the duty of a newspaper to expose corruption and bring to the notice of the general public the manner in which a public body is conducting its affairs. 15. Per contra, learned counsel for the complainant contended that the said news items are per se defamatory. Page Nos.10 of 36 Whether or not they contain true facts or were published in public interest is a matter of defence. That it is settled law that courts cannot consider defence of a party at the stage of quashing. Counsel relied upon following judgments in support of his argument: - (i) Shatrughna Prasad Sinha v Rajbhau Surajmal Rathi & Ors, (1996) 6 SCC 263. (ii) Sewakram Sobhani v R.K. Karanjiya, AIR 1981 SC 1514. (iii) Sardar Nihal Singh v Arjan Das, 1983 CrLJ 777. 16. Every individual has a right to protect his reputation. Disparaging and defamatory statements made about a person to a third person or persons without lawful justification or excuse are actionable in law. As observed by the Supreme Court in the decision reported as State of Bihar v Lal Krishna Advani, AIR 2003 SC 3357 reputation is an integral and important aspect of dignity of every individual. The right to preservation of one's reputation is acknowledged as a right in rem, a right good against all the world. 17. But freedom of speech and expression are the foundation of all democratic organisations. Freedom of expression stems from the requirement that members of a democratic should be sufficiently informed. In the decision reported as Attorney General v Times Newspaper Ltd., (1973) 3 All ER 54, it was Page Nos.11 of 36 observed that freedom of expression has following four broad social purposes to serve:- (i) It helps an individual to attain self fulfillment. (ii) It assists in the discovery of truth. (iii) It strengthens the capacity of an individual in participating in decision making. (iv) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. 18. The right of the print media to publish news pertaining to matters of public concern is recognized as an integral part of freedom of expression. (See decisions of the Supreme Court in Virender v State of Punjab AIR 1958 SC 986 and Sakal Papers v Union of India AIR 1962 SC 305. 19. The fundamental objective of journalism is to serve the people with news, views, comments and information on matter of public interest in a fair, accurate, unbiased, sober and decent manner. It is the legitimate function of a newspaper in a democratic set up to act as the champion of a clean administration and sentinel of public interest, and as such a newspaper is within its right to expose and bring to the notice of the general public any lapse or malpractice in the working of a public authority including acts of nepotism and favoritism. Page Nos.12 of 36 20. The law of defamation is a culmination of a conflict between society and the individual. On one hand lies the fundamental right to freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution of India, on the other is the right of individual to have his reputation intact. How far does the liberty of free speech and expression extend? And when does it become necessary for the law to step in to safeguard the right of the individual to preserve his honour. The law of defamation seeks to attain a balance between these two competing freedoms. 21. The classical definition of 'defamation' has been given by Justice Cave in the case of Scott v Sampson, (1882) Q.B.D. 491, as a “false statement about a man to his discredit”. 22. In the book The Law of Defamation, by Richard O'Sullivan, QC and Ronald Brown, 'defamation' is defined as a false statement of which the tendency is to disparage the good name or reputation of another person. 23. As per Section 499, Indian Penal Code, offence of defamation consists of three essential ingredients namely:- (i) Making or publishing any imputation concerning any person. (ii) Such imputation must have been made by words either written or spoken or by visible representation. Page Nos.13 of 36 (iii) Such imputation must be made with the intention to cause harm or with the knowledge or having reasons to believe that it will harm the reputation of the person concerned. 24. In the light of above discussion, it has to been seen whether news items in question are defamatory or a fair report pertaining to the affairs of DDA, a statutory body charged with the planned development of Delhi. 25. Before proceeding to analyse the news items in question, I quote the well-known passage of Lord Shaw in the decision reported as Arnold v King Emperor LR (1913-14) 41 Ind. App. 149. “The freedom of the journalist is an ordinary part of the freedom of subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to this power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.” 26. Pertaining to news item published in 'Navbharat Times', relevant allegations in the complaint are as follows:- “7. That the Accused No. 1 to 3 caused a news item in “NavBharat Times” New Delhi Edition dated 4th May 2001, making false allegations that the complainant was involved in illegal allotments of DDA Flats and misappropriated several crores of rupees. It is submitted that the complainant had not worked in the Housing Department of DDA and, therefore, the Page Nos.14 of 36 allegations that she was connected with housing scam is totally false, malicious and defamatory. Copy of the said publication is annexed hereto and marked as ANNEXURE-D to this complaint. 8. That the accused No 1 to 3 made allegations in the news item, which is publicly circulated in the city and other parts of the country stating that the on the raid conducted by CBI officers on the complainant a huge amount of cash, documents relating to various investments and documents relating to DDA houses were recovered.” 27. News item published in ‘Navbharat Times’ centers around the facts that complainant was an accused in a housing scam being investigated by CBI. That a search was conducted at her office and her residential premises. That she along with 7 others employees were suspended. That she was the only suspended employee who was reinstated and that CBI had not given her a clean chit at the time of her reinstatement. 28. All these facts are a matter of record. What is reported in the said news item is statement of true facts. It is a fair and objective report of correct facts. There are no insuinations and innuendo. 29. In the complaint, complainant has stated that news item has falsely alleged that she was involved in the illegal allotments of DDA flats and misappropriated several crores of rupees, that she was working in Housing Department of DDA Page Nos.15 of 36 and that in the raid conducted by CBI officials huge amount of cash, documents etc were found in her house. 30. The said news item does not report that complainant was involved in the housing scam. It merely reports that complainant is accused of being involved in the scam, which is a true fact. The news item also does not report that cash, incriminating documents were found from complainant's house. The said news item reports that a raid was conducted by CBI at official as well as residential premises of various DDA employees including complainant and that huge amount of cash and documents were recovered in the raids. It is a fact that a raid was conducted at the complainant's house and certain articles were seized by the CBI. The news item does not single out complainant. Complainant is trying to twist the said news item. 31. Thus, news item published in ‘Navbharat Times’ does not contain any defamatory imputations. It merely contains statement of true facts and is published in public interest. 32. The Supreme Court in the decision reported as State of Haryana v Bhajan Lal and Ors, AIR 1992 SC 604 considered in detail the ambit and scope of Section 482 of the High Court to quash the investigation/FIR/complaints. The decision lays down Page Nos.16 of 36 following 7 circumstances in which such a power could be exercised; - “1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the Page Nos.17 of 36 institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with malafide and/or