HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.1092 OF 2009 ORDER: This Criminal Petition is filed to quash proceedings in C.C.No.1162 of 2008 on the file of the II Additional Chief Metropolitan Magistrate, Hyderabad, registered for offences punishable under Sections 500 and 501 I.P.C. read with Section 34 I.P.C. against the petitioners (A1 and A2 in the Criminal Case) (for short A1 and A2) on the ground that they are innocents of the offences alleged against them and there is no prima facie case to prosecute them accordingly. 2. The complainant’s version is as follows. He is a social worker, politician and Ex. M.C.H. Corporator presently. He is in-charge of Chandrayanagutta Assembly Constituency for his Party i.e., AMIM party. A1 and A2 on 27.06.2008, published defamatory news item against him and his family members under headlines “Ex-Corporator of a limited political party is a crorepati where from all this wealth come from? Question the workers of political party.” After reading the said false and defamatory news, the complainant was shocked and had undergone mental trauma. Hence, he filed the complaint to punish A1 and A2 under Sections 500 and 501 I.P.C. read with Section 34 I.P.C. and also claiming damages of Rs.50,000/-. 3. It is to be considered whether sufficient grounds are there in order to quash the proceedings against A1 and A2. 4. The alleged imputation reads: “Ex-Corporator of a limited political party is a Crorepati – Where from all this wealth come from? Question the workers of political party Hyderabad – 26th June (Munsif News Bureau) Among those who have become Millionaires without legal means of income are not only the leaders of a political party limited to a part of the city, but also their stooges. A former corporator of the city who was living in a rented house till yesterday, own a spacious and lavish, multi storied Bungalow in Ghazi Banda. There are many servants in the house, a watchman and many cars and motor cycles. The only qualification he is holding is that he is the right hand of an important leader of this party. This person was living in a rented house in Mulad – ki – Taalim, Fateh Darwaza for 20 years, who has been added the prefix of “Nawab” before his name. The moment he became the right hand of M.L.A. of Chandrayangutta Assembly Constituency, his income started and first he shifted to a house in Chandulal Baradari Colony and lived there for five years, giving much hard time to the landlord and vacated the house after receiving money from him. He purchased the house for Rs.70 lakhs in Ghazi Banda, near Aliabad. Earlier he owned a Honda Splendor Bike and his father used a Bajaj Vespa. His three younger brothers owned only a single Bicycle. But, now the situation has changed. This ex-corporator has become the owner of a Bolero car. His father now drives a Zen. His family members use a Tata Indigo and his brothers have four Motor Cycles. There are three servants in their house. There are many domestic helps as well. Two of the ex-corporator’s brothers are realtors, in which money of several political leaders has been invested. He is the don of Chandrayangutta Assembly Constituency. He is to be approached for seeing the M.L.A. The reason cited for his being so near to the leader of the political party is that he played a vital role in making arrangements for the marriage ceremony of the M.L.A. Circles of the party say that the party president and M.P. does not like this ex-corporator. Workers of the political party say that Nawab owns Ac.16-00 in Maheshwaram and also large tracts of land in Balapur. This ex-corporator supervised the construction work of the political leader adjacent to Gandipet. The M.L.A. took his breakfast at the house of Nawab and was there for over two hours. Politicians of this limited party say that through black mailing, Nawab will be successful in getting party’s ticket for the forth coming elections” 5. Learned counsel for A1 and A2 contends that the name of the complainant is not found in the news item and there is also no basis to infer about it indirectly, and that does not amount to lowering the reputation of the complainant in the public and hence, there is no basis to prosecute them in the case. It is his further contention that so far as A2 is concerned, there is absolutely no basis to say that he instigated A1 and got published the material in question and further he being the Chief Editor of the Munsif Daily Urdu Newspaper, he cannot be said to have any knowledge about the untruthfulness of the publication. He has placed reliance upon the following decisions in support of his claims 1) Ravi Prakash v. J.C. Diwakar Reddy and another [1] 2 ) Dasari Narayana Rao v. R.D. Bhagvandas and another [2] and 3) K.M. Mathew v. State of Kerala and another [3] . 6. On the other hand, learned Additional Public Prosecutor contends that the publication clearly infers that it was made against the complainant and it is per se defamatory and; further it is for the concerned Magistrate to consider the question basing upon the material available and also the evidence to be recorded; and at this stage, the proceedings cannot be quashed in favour of A1 and A2 placing reliance upon the decision in K.M. Mathew’s case (3 supra). It is further his contention that as there is sufficient material to come to the conclusion prima facie that the imputation was made by A1 and A2 using the newspaper, necessary trial has to be conducted and at this stage, the Calendar Case cannot be quashed. 7. Having gone through the record I am clearly of the opinion that though no name of the complainant or the person against whom the alleged imputation is said to have been given in the news item, it infers that it was made with reference to a particular individual. It is also not in dispute that the complainant was or has been a Corporator. There is no plausible explanation that it was made with reference to a different person. The parties will have personnel knowledge about all the details. Further per se it appears to be defamatory in nature. Hence necessary trial of the case is to be conducted. 8. So far as the question of prosecution of A2 is concerned, in Ravi Prakash’s case (1 supra), in which a petition was filed for quashing a Calendar Case registered for offence punishable under Section 500 I.P.C., taking into consideration relevant facts and circumstances of the case, it is observed as follows: “It should be noted that the complainant is alleging criminal defamation against the accused, as distinguished from civil defamation. In order to constitute offence of defamation under criminal law, Section 499 IPC contemplates “intending to harm, or knowing or having reason to believe that such imputation will harm reputation of such person” on the part of the accused. In the entire complaint, the complainant/1st respondent did not allege that the accused who is Chief Executive Officer of T.V.-9 channel telecast the news item or permitted to telecast the news item with such state of mind (Mens rea). Except as Chief Executive Officer of the T.V. news channel, the complainant did not allege any other connection for the accused with telecasting of this news item. It is not as if the accused was news reader or voice over artist or editor or news reporter in relation to this news item or the news bulletin in which this news item was telecast. In the absence of any such connection for the accused with this news item and in the absence of any such Mens rea or state of mind for the accused in relation to this news item, simply because the accused happened to be Chief Executive Officer or Proprietor or Partner of Managing Director of the T.V. News Channel, no criminal case can lie against him for offence punishable under Section 500 I.P.C. In the absence of any allegations of Mens rea and in the absence of any factual participation in telecasting the impugned news item, the accused cannot be said to have prima facie committed offence of defamation on the sole ground that he is Chief Executive Officer of T.V.-9 news channel. Generally, the criminal law does not recognize vicarious liability on the part of the employer, unless there is any special and specific provision in any statute touching criminal liability.” In similar circumstances, in Dasari Narayana Rao’s case (2 supra) it is observed: “Where a complaint was lodged under Ss.500 and 501 IPC against the Chairman of the Board of Directors of company which published a daily, on grounds that some of the articles published in the daily were per se defamatory but the Chairman of the company was neither Printer nor Publisher nor Editor of the daily as evidenced by declaration lodged under Press and Registration of Books Act, 1867, he could not be imputed with knowledge of contents of impugned articles printed in issues of the newspapers under S.7 of the Act. Consequently, the complaint was liable to be quashed. The fact that he was described as ‘Saradhy’ of the daily, in the context, could only mean that the chairman was either founder or chief promoter of company and nothing more. No knowledge of contents of publications in daily could be ascribed to the petitioner by reason of his description printed in the daily…” 9. On the other hand, in K.M. Mathew’s case (3 supra) there was an allegation of publishing defamatory statement in a newspaper and motive was attributed on the part of the Chief Editor of the newspaper to do so and a petition was filed by the Chief Editor of newspaper to quash the proceedings so far as he was concerned before the concerned forum and the Honourable Supreme Court which considered the matter observed: “It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside.” It is pertinent to note here that in that case the concerned Magistrate had not proceeded against the concerned Chief Editor on the ground that no case was made out against him. 10. In order to proceed against A2 here also there should be clear material to the effect that he published the matter in collusion with A1 with the intention of defaming the complainant. It may be that he or his staff got it published in good faith. In fact, there is only bald allegation that he instigated A1 and got published the material in the newspaper which, therefore, is not suffice to prosecute him in the case. The principles laid down in the decisions cited above are thus applicable to the facts of the case so far as A2 is concerned and accordingly, to that extent the petition is to be allowed. 11. For the above reasons, the Criminal Petition is allowed insofar as A2 is concerned and it is dismissed in so far as A1 is concerned and consequently, the prosecution of the case has to be done only against A1. 12. Accordingly, the Criminal Petition is disposed of. ________________________________ G. KRISHNA MOHAN REDDY, J December 26, 2011 MD THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.1092 OF 2009 December 26, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDRABAD Dated: 26.12.2011 PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.1092 OF 2009 Between: The Musiff Daily Urdu Newspaper and another ..... PETITIONERS AND Jameeluddin Ahmed @ Nawab and another ....RESPONDENTS The Court made the following: [1] 2010 (1) ALD (Crl.) 575 (AP) [2] 1986 Crl.L.J. 888 [3] AIR 1992 SC 2206 (1)