1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.888 OF 2007 IN CRIMINAL APPEAL NO. OF 2007 Damji Ramji Shah ..... Applicant. V/s State of Maharashtra & Ors. ..... Respondents. ----- Mr. Shirish Gupte, Senior Counsel with Mr. A.R. Pande for the applicant. Mr. Rajesh More, APP for the State. Mr. Rajiv Patil i/b Mr. Milind S. Sawant for respondent Nos. 2 to 5. CORAM: V.M. KANADE, J. DATE: 6th October, 2008 P.C.: 1. Heard the learned Counsel for the applicant and the learned Counsel appearing on behalf of respondent Nos. 2 to 5. 2. Applicant has filed this application for leave to appeal, challenging the judgment and order passed by the learned Metropolitan Magistrate 18th Court, Girgaum, Mumbai in Criminal Case No.45/S of 1995, whereby the learned Magistrate was pleased to acquit respondent Nos. 2 to 7 of the offence punishable under section 500 of the Indian Penal code read with sections 120-B, 34 of 2 the Indian Penal Code. 3. It is the case of the applicant that he had filed a complaint against respondent Nos. 2 to 7 under section 500 of the Indian Penal Code. It is submitted that respondent Nos. 2 to 5 had given a complaint to the Hon'ble Minister and this letter was, thereafter, given for publication to respondent Nos. 6 and 7 and, as a result, news- paper article was published in the Marathi Daily News-paper “Aaj Dinak” on 17/07/1995 wherein certain per se defamatory allegations were made against the applicant herein. The Trial Court, after perusing the evidence which was on record, came to the conclusion that the respondents had filed an affidavit before the competent authority and, therefore, they were covered under the 8th exception to section 499 of the Indian Penal Code and, therefore, were not liable to be punished for the offence punishable under section 500 of the Indian Penal Code. 4. Mr. Shirish Gupte, the learned Senior Counsel appearing on behalf of the applicant has taken me through the article dated 17/07/1995 and submitted that the article contained per se defamatory allegations. He submitted that it was not sufficient for the accused to establish that the application is filed before any authority. He submitted that the application has to be made to the authority which is competent to decide the application which is filed by the complainant. He submitted that the Home Minister was not competent to decide whether the applicant was involved in extracting ransom or was involved in drug business or had committed an offence punishable 3 under section 307 and other allegations which are made in the said Article. He, therefore, submitted that the Trial Court has clearly erred in misconstruing the provisions of the 8th exception to section 499 of the Indian Penal Code. He further submitted that respondent Nos. 2 to 5 were directly responsible for getting the Article published. He submitted that this is evident from the Article itself wherein it is mentioned that the respondents had filed an application before the Home Minister. He invited my attention to the statement made by the complainant in his evidence. He submitted that there was ample material on record to indicate that publication of the Article was done at the instance of respondent Nos. 2 to 5 and, therefore, the Trial Court has erred in acquitting all these accused. 5. Mr. Patil, the learned Counsel appearing on behalf of the respondent Nos. 2 to 5, on the other hand, submitted that this Article was published atleast in more than 10 other news-papers and he further submitted that the Article merely stated that a representation was made by respondent Nos. 2 to 5 to the Home Minister and later on gave details of the said representation. He submitted that, therefore, leave may not be granted to the applicant. 6. After having heard both the Counsel, in my view no case is made out by the applicant for leave to appeal so far as applicant Nos. 2 to 5 are concerned. It is an admitted position that respondent Nos. 2 to 5 and the applicant have filed number of cases against each other in various courts. Respondent Nos. 2 to 5, therefore, had made the representation to the Home Minister, seeking assistance of the Home 4 Minister against the applicant. Applicant is the landlord and respondent Nos. 2 to 4 are the tenants and respondent No.5 is an association of tenants. So far as respondent Nos. 2 to 5 are concerned, in my view, there is no direct evidence on record to indicate that they had conspired with respondent Nos.6 and 7 in publishing the said Article. That being the position, the Trial Court was justified in holding that they were covered by the 8th exception to section 499 as they had merely given the representation to the highest authority in the State who is responsible for maintenance of law and order. 7. Therefore, no case is made out by the applicant for grant of leave to appeal against respondent Nos. 2 to 5. 8. So far respondent Nos. 6 and 7 are concerned, it is a settled position in law that the publisher has an additional responsibility before publishing any article and it is his duty to find out whether the allegations which are made in the Article or in the application which is filed to the competent authority are prima facie true and correct or not and only after the publisher is satisfied about its truthfulness, he has right to publish the said Article. Prima facie case is, therefore, made out out by the applicant for grant of leave to appeal against respondent Nos. 6 and 7 as, in my view, prima facie, no such care appears to have been taken by respondent Nos. 6 and 7. 9. Leave to file appeal is therefore granted against respondent Nos. 6 and 7. 5 10. For the aforesaid reasons appeal is admitted qua respondent Nos.6 and 7. (V.M. KANADE, J.)