CRM No.M-22877 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-29.9.2010 Nishi Kant Thakur & others ...Petitioners Versus Amar Singh Jauhari & another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.R.S.Sihota, Senior Advocate with Mr.H.P.S.Ishar, Advocate for the petitioners. Ms.Sumanjit Kaur, Advocate for respondent No.1. Mr.Vikas Malik, A.A.G.Haryana for respondent No.2. M ehinder S ingh S ullar , J . (Oral) The matrix of the facts, culminating in the commencement, relevant for deciding the core controversy raised in the present petition and emanating from the record, is that a criminal case was registered against Amar Singh Jauhari (respondent No.1), owner, Publisher and Editor of Dainik Akhri Koshish, Panipat, vide FIR No.292 dated 28.6.2005 on accusation of having committed an offence punishable under section 384 IPC by the police of Police Station City Panipat, in the wake of the complaint of complainant Inderjit son of Sai Dass, which reads as under:- “That Amar Singh Jouhri came to my Dhaba on 15.6.05. At that time, Lal Chand Mehta caste Arora Khatri R/o Noorwala, Lajpat s/o Om Parkash caste Arora Khatri were sitting there when Amar Singh Jouhri started asking and said that whether you have improved or not; I will get your Dhaba closed and make you starve for pennies. In the presence of Lajpat and Rakesh I said that I am a poor person and you should not harass me, who said that give me Rs.25,000/- otherwise police will continue to raid your Dhaba and you have to leave the CRM No.M-22877 of 2008 2 Dhaba. I got frightened. He has also filed a case against Gurmukh and Piara and is asking for money for compromise. He also demands money from Baldev Raj and Purshotam by threatening. This person Amar Singh Jouhri on account of being journalist by giving false application against these people threatens them to get their business close and demands money in lieu thereof. Legal action be taken against him. People should be got released from him.” 2. Having investigated the criminal case, the police submitted the challan/final police report under section 173 Cr.PC (Annexure P1). Consequently, respondent No.1 was also charge sheeted for the commission of crime under section 385 IPC by the JMIC Panipat, vide charge sheet dated 29.4.2006 (Annexure P2). 3. The indicated occurrence was reported in the newspaper Dainik Jagran (Jagran City Panipat) dated 30.6.2005. Subsequently, newspaper of the petitioners also published an addendum to the report on 2.2.2006. 4. Aggrieved by the publication of the report, the respondent- complainant filed a criminal complaint (Annexure P5) against the following 12 persons, including the petitioners, for prosecuting them under section 500 IPC:- 1. Ramesh Chander Aggarwal, Publisher & Printer of Dainik Bhaskar, Newspaper, GT Road, Panipat; 2. Babu Lal Sharma, Editor, Dainik Bhaskar, Newspaper, GT Road, Panipat; 3. Mukesh Bhushan, Residential Editor, Dainik Bhaskar, Newspaper, GT Road, Panipat; 4. Avinash Chopra, Joint Editor, Punjab Kesri Newspaper, Jalandhar (Punjab); 5. Vijay Chopra, Editor, Publisher and Printer Punjab Kesri, Newspaper, Jalandhar (Punjab); 6. Surjeet Kharb, Punjab Kesri Newspaper Sub Office, Ram Lal Chowk, Panipat; CRM No.M-22877 of 2008 3 7. H.K.Dua, Chief Editor, Dainik Tribune, Newspaper, Chandigarh; 8. Naresh Kanshal, Publisher, Printer cum off setting editor Dainik Tribune, Newspaper, Sector 29-C Chandigarh; 9. Surinder Sangwan, Press Correspondence, Dainik Tribune, Assandh Road, Panipat; 10.Sanjay Gupta, Editor Dainik Jagran Sector 8, Noida (UP); 11.Nishi Kant Thakur,Publisher and Printer Dainik Jagran Newspaper, 501, INS, Building, Raffi Marg, New Delhi; 12.Ramesh Bharara, General Manager, Dainik Jagran, Newspaper, Panipat. 5. The Judicial Magistrate Ist Class, Panipat summoned all the accused including the petitioners, to face trial under section 500 IPC, by virtue of summoning order dated 10.9.2005 (Annexure P6). 6. The petitioners, claiming themselves to be Publishers, Printers and General Manager of Dainik Jagran newspaper, did not feel satisfied with the initiation of criminal prosecution and filed the instant petition for quashing the complaint (Annexure P5) and summoning order (Annexure P6), invoking the provisions of section 482 Cr.PC, inter-alia on the following grounds:- (i) That the filing of the complaint by the Respondent is abuse of process of law as is clearly evident from the facts of the case; (ii)That the FIR No.292 dated 28.6.2005 has been registered under section 384 IPC and the Respondent has also been charged by trial Court on 29.4.2006 under section 385 IPC; (iii)The perusal of Annexure P/3 shows that the report is true with regard to the factum of arrest and sending the respondent to judicial custody. Therefore, no offence could be said to be made out under section 502 IPC; (iv)That first exception to section 499 IPC (defamation) provides that it is no defamation to impute anything which is true concerning any person. Therefore, in the present case the reporting of the occurrence as such, which is the main premise of the complaint is a truthful version and the complaint as such is liable to be quashed; CRM No.M-22877 of 2008 4 (v)That so far as reference to the Respondent as 'FICTITIOUS JOURNALIST' is concern, regret has been made by publishing addendum vide Annexure P/5 dated 2.2.2006. Therefore, there remains no case for maintainability of the complaint in question against the Petitioner; (vi)That it may be stated that the Petitioner who is only publisher and printer cannot at all be proceeded against as his work and conduct does not fall within the ambit of section 500 IPC. 7. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present petition deserves to be partly accepted in this context. 8. As is evident from the record that a criminal case was registered against the respondent-complainant in the manner indicated here-in-above. After completion of investigation, the police submitted the final police report (Annexure P1). Accordingly, he was charge sheeted by the Magistrate, vide order (Annexure P2). The matter was reported/published in the Dainik Jagran Newspaper of the petitioners to the following effect:- “FICTITIOUS JOURNALIST SENT IN CUSTODY. The fictitious journalist Amar Singh Jauhari sent by the order of the court of Judicial Magistrate, on the allegation of demanding money by threatening the Dhaba owner. On the complaint of Inderjit R/o Noorwala Police has arrested the accused on Tuesday when the case was registered against him. The Court passed orders to send the accused Krishan and Sanjay Rs/o Panipat in other theft case, to judicial custody. Krishan was arrested by the Railway Police and Sanjay was arrested by Chandni Bagh Police in theft case on Tuesday and were produced in the Court.” 9. It is not a matter of dispute that the petitioners published an addendum to the report on 2.2.2006, when translated reads as under:- “Panipat-2nd February-Jauhari a respectable Journalist. Panipat-journalist Amar Singh Jauhari, Editor Akhari Kaushish CRM No.M-22877 of 2008 5 and is a respectable citizen. It is regrettable to publish him as so called journalist.” 10. The Magistrate appears to have summoned the petitioners as an accused in a routine manner under section 500 IPC, vide order (Annexure P6), the operative part of which is, as under:- “In view of the submissions made by learned counsel on behalf of complainant, on perusal of CW1 and on perusal of all the documents placed on file by the complainant, prima facie it appears that all the allegations levelled by the complainant against the accused are correctly made. Therefore, it is a fit case to summon the above named accused under section 500 of the IPC. Let notice to the above named accused be issued for 4.2.2006 on filing of PF etc. within three days.” 11. The Hon'ble Apex Court in case M/s Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others AIR 1998 Supreme Court 128 has ruled (para 28) as under:- “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any CRM No.M-22877 of 2008 6 offence is prima facie committed by all or any of the accused.” 12. Above being the position on record and law, now the sole question that arises for determination in this case is as to whether the Magistrate followed the settled principle of law, emanating from Section 204 Cr.PC or not? 13. Having regard to the rival contentions of the learned counsel for the parties, to me, the summoning Magistrate slipped into legal error in this relevant connection and passed the summoning order in the routine fashion. 14. At the time of summoning and before arraying the person as an accused, it was the duty of the Magistrate to prima facie come to the conclusion that the action of the petitioners in any way falls within the ambit of defamation as envisaged under section 499 IPC. In the instant case, what the Dainik Jagran newspaper of the petitioners has reported the truth that the respondent was sent to judicial custody on the allegation of demanding money by threatening the Dhaba owner on the complaint of Inderjit r/o Noorwala. It is no body's case that the contents as indicated and published in the report were wrong in this regard, particularly when the petitioners have published addendum on 2.2.2006 that respondent No.1 is a responsible journalist and regretted the publication of report (Annexure P4). 15. In that eventuality, it was the duty of the Magistrate to apply its judicious mind in this direction before summoning the accused and come to a definite conclusion that the publication actually falls within the ambit of offence defined and contemplated under section 499 IPC, which is totally lacking in the present case, particularly when Explanation 4 posits that “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.” CRM No.M-22877 of 2008 7 16. Meaning thereby, the Magistrate completely ignored the legal principles of summoning the accused in this relevant direction. Therefore, the impugned summoning order cannot possibly be sustained in the eyes of law, in the obtaining circumstances of the case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the case, the instant petition is partly accepted. Consequently, the summoning order (Annexure P6) qua the present petitioners is hereby set aside in this respect. 19. Needless to say that the summoning Magistrate may apply its judicious mind on the entire matter and pass an appropriate order as warranted by law. 29.9.2010 (Mehinder Singh Sullar) AS Judge