2025 INSC 241
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. AND HON’BLE R. MAHADEVAN, JJ.)
JAIDEEP BOSE
Petitioner
VERSUS
M/S BID AND HAMMER
AUCTIONEERS PRIVATE
Respondent
NERGISH SUNAVALA
Appellant
VERSUS
M/S. BID AND HAMMER AUCTIONEERS PRIVATE
LIMITED & ORS.
Respondent
SWATI DESHPANDE &
ORS.
Appellants
VERSUS
M/S. BID AND HAMMER
AUCTIONEERS POOJA SHARMA PRIVATE LIMITED
Respondent
Criminal
Appeal No. 814 OF 2025 (Arising out of SLP (Crl.) No. 10212 of 2024 With Criminal
Appeal No. 815 OF 2025 (Arising out of SLP (Crl.) No. 13443 of 2024 With Criminal
Appeal No. 816 OF 2025 (Arising out of SLP (Crl.) No. 15653 of 2024 With Criminal
Appeal No. 817 OF 2025 (Arising out of SLP (Crl.) No. 16153 of 2024-Decided on
18-02-2025
Criminal, Defamation, Quashing
(A) Constitution of India, Article 226 - Criminal
Procedure Code, 1973, Section 482 - Penal Code, 1860, Section 499, 500 – Press
and Registration of Books Act 1867, Section 5, 7 - Quashing of summoning order – Defamation - Quashed - Appellant (A2) is the
Editorial Director of the company and other appellants are authors of the
alleged defamatory news articles published in various newspapers - The
respondent filed a single private complaint against the accused for committing
the offence of defamation - Complaint merely alleges that the appellant (A2)
oversaw the publications - No other averments were made to establish as to how
the appellant (A2) was responsible for controlling the selection of contents of
the newspaper publications - He is the editorial director of the company and
not of the individual newspapers – Held that such a broad, general or blanket
statement without specific or substantive details cannot justify the issuance
of summons - The Magistrate, without a proper examination and inquiry,
proceeded to issue summons to the appellant (A2) - Appellant (A2) resides in
Mumbai, which falls outside the jurisdiction of the concerned Magistrate - In
such a scenario the Magistrate was required to proceed with the complaint in
accordance with section 202(1) Cr.P.C. - However, no such inquiry was
conducted in the present case - Complaint is not maintainable against the
appellant (A2).
(Para 19)
(B) Constitution of India, Article 226 - Criminal
Procedure Code, 1973, Section 482 - Penal Code, 1860, Section 499, 500 – Press
and Registration of Books Act 1867, Section 5, 7 - Quashing of summoning order
– Quashed – Defamation -
The
respondent filed a single private complaint against all the accused for
committing the offence of defamation -
It is evident from the orders of the trial Court as well as the High
Court that not all news articles individually authored by the various accused
were considered - While passing the impugned order, the High Court referred
only to one article authored by (A4) and neither took into account nor
discussed the other news articles authored by the remaining accused -
Furthermore, the mandatory procedure under section 202 Cr.P.C., was
clearly not followed - The Appellants viz., A8, A9, A10, A12 and A13 reside in
Mumbai / Kolkata, whereas the complaint was filed in Bangalore - The
complainant failed to produce any witness to prima facie establish that the
alleged imputations had lowered their reputation in the estimation of others
and the Magistrate, after merely reviewing the complainant’s statement,
proceeded to issue summons - Thus, the Magistrate’s order clearly suffers from
procedural irregularity - Ordinarily, such irregularities would warrant a
remand - However, in the present case, the auction was conducted on 27.06.2014
and the complaint was filed on 22.08.2014b - No material has also been placed
to suggest that the auction was unsuccessful or that any damage or loss was
actually caused, due to the alleged news articles published in the newspapers -
Irrespective of the same, at this stage, remanding the matter for fresh
examination of witnesses before issuance of summons would serve no useful
purpose, given the remote likelihood of securing witnesses - It would only
prolong the litigation yielding little to no benefit especially, since the
auction has already concluded and more than a decade has passed - Submissions
of the learned counsel for the appellants that there is no intent to
defame or harm the complainant’s reputation - This Court vide common order
dated 20.07.2022 titled ‘M/s.DAG Pvt. Ltd. V. M/s.Bid & Hammer Auctioneers
(P) Ltd.’ allowed similar criminal appeals bearing Nos. 1008/2022 etc. cases,
arising from the complaint filed by the same complainant - In view of the above
stated reasons, to meet the ends of justice, the order passed by the High Court
as well as the issuance of summons by the Magistrate liable to be quashed -
Consequently, the criminal proceedings initiated against the appellants are
also liable to be quashed.
(Para 20)
(C)
Constitution of India, Article 19(1)(a) – Constitution Law - Right to freedom
of speech and expression – Need
for accuracy and fairness in media reporting - Held that right to freedom of
speech and expression guaranteed under Article 19(1)(a) of the
Constitution of India is paramount - At the same time, it is reiterated that
those working in the media, particularly, individuals in key positions,
authors, etc., must exercise utmost caution and responsibility before
publishing any statements, news, or opinion - The power of the media in shaping
public opinion is significant and the press possesses the ability to influence
public sentiments and alter perceptions, with remarkable speed - As aptly
stated by Bulwer Lytton, “The Pen is mightier than the sword” - Given its vast
reach, a single article or report can resonate with millions, shaping their
beliefs and judgments, and it has the capability to cause severe damage to the
reputation of those concerned, with consequences that may be far-reaching and
enduring - This highlights the critical need for accuracy and fairness in media
reporting, especially when dealing with matters having the potential to
impact the integrity of individuals or institutions - Keeping these aspects in
mind, publication of the news articles must be done in public interest and with
good faith.
(Para 21)
JUDGMENT
R. Mahadevan, J. :- Leave granted.
2.
These appeals are directed against an order dated 18.06.2024 passed by the High
Court of Karnataka at Bengaluru[Hereinafter
referred to as “the High Court”] in Criminal Petition No.3829 of
2017, titled ‘Bennett Coleman and Co. Ltd and others v. M/s. Bid and Hammer
Auctioneers Private Limited, arising out of complaint in PCR No.13146/2014 and
CC No.18491 of 2016 pending on the file of the Court of II Additional Chief
Metropolitan Magistrate, Bengaluru[Hereinafter
referred to as “the trial Court”] . By the said order, the High Court
dismissed the criminal petition filed by the appellants herein challenging the
initiation of the criminal proceedings against them for the offences under
sections 499 and 500 of the Indian Penal Code, 1860[For short, “IPC”], however, quashed the
complaint as far as M/s. Bennett Coleman and Co. Ltd. [For short, “the company”] (Accused No.1) is
concerned.
3.
The genesis of the present cases lies in a private complaint dated 22.08.2014
filed by the complainant / respondent herein against the company and its
directors, editors and journalists, numbering 14 accused persons,
under Section 200 of the Code of Criminal Procedure, 1973[For short, “Cr.P.C”] read
with Sections 499 and 500 IPC. The gravamen of the
complaint pertains to certain news articles published in various newspapers
viz., Bangalore Mirror, Mumbai Mirror, The Times of India (Bangalore, Kolkata,
Mumbai, New Delhi, and Pune Editions), and The Economic Times (New Delhi and
Mumbai editions) on 27.06.2014, 28.06.2014, 29.06.2014, 06.07.2014, 07.07.2014,
and 20.07.2014 which contained alleged defamatory contents regarding the
authenticity of certain paintings to be auctioned by the respondent herein.
4.
Upon receipt of the complaint, the sworn statement of the complainant /
respondent was recorded on 14.11.2014. Thereafter, the trial Court took
cognizance of the complaint and directed to register the same for the offences
under sections 499 and 500 IPC and issue summons to the
accused, vide order dated 29.07.2016. The complaint was received as PCR No.13146/2014
and later, registered as CC No.18491 of 2016 which is now, pending on the
file of the trial Court.
5.
Challenging the issuance of summons, the appellants filed Criminal Petition
No.3829 of 2017 before the High Court seeking to quash the criminal proceedings
initiated against them. After due contest, the High Court dismissed the
petition as against the appellants herein, however, quashed the complaint as
far as the company (A1) is concerned. Aggrieved by the same, the appellants are
before us with the present appeals.
CONTENTIONS
6.
The learned counsel for the appellant / Accused No.2 [SLP (Crl.) No.10212 of
2024] made the following submissions:
(a) The appellant is
neither the author of the alleged defamatory news articles nor editor of any of
the newspapers in question; and he is editorial director of the company; and
therefore, he is not responsible for the publication of the alleged defamatory
news articles.
(b) In the private
complaint filed by the respondent, there is no specific averment regarding the
appellant’s role in publishing the alleged defamatory news articles, except
mentioning his name as the editorial director of the company and thus, he could
not have been arraigned as an accused.
(c) Under the
Press and Registration of Books Act, 1867, it is the "editor" who
controls the selection of matter published in the newspapers, besides requiring
the names of editor, printer, and publisher to be published in the print line
of the newspapers. The appellant's name does not appear in the print line of
any of the newspapers that published the news articles in question. The
designation of "Editorial Director" without any specific allegation
about the appellant's direct involvement in the publication of the impugned
news articles, cannot form the basis for criminal liability. Therefore, the
appellant cannot be held liable for the alleged offences.
(d) Section
202 Cr.P.C. as amended in 2005, mandates an inquiry before proceeding
against an accused residing outside the jurisdiction of the Magistrate and this
provision aims to prevent the harassment of persons residing at far-off places
through false complaints. In this case, the Magistrate did not examine any
other witnesses except the complainant and the statement of the complainant
manifestly fail to prove the allegation of defamation against the appellant.
Hence, the failure of complying with the mandatory provision of Section
202 Cr.P.C. before issuing process against the appellant, who resides in
Mumbai i.e., outside the territorial jurisdiction of the Bengaluru court,
vitiates the criminal proceedings initiated against him.
(e) The complaint
lacks the essential ingredients of criminal defamation under Section
499 IPC. The explanation to the said section clearly requires that the
imputation must lower the moral or intellectual character of a person in the
estimation of others. Whereas, the complaint filed by the respondent relies
solely on the complainant's self-estimation of harm without any evidence
from third parties about reputational damage. Thus, the failure to establish
reputational harm in the eyes of others, renders the said complaint
unsustainable.
(f) Without properly
appreciating all these aspects, merely on assumption that the appellant being
the editorial director, is overseeing the contents of all the newspapers and
responsible for the publication of alleged defamatory news articles, the High
Court dismissed the criminal petition filed by the appellant, by the order
impugned herein, which has to be set aside by this Court.
7.
The learned counsel for the appellant / Accused No.12 [SLP (Crl.)
No.13443/2024] made the following submissions:
(a) The order impugned
herein only refers to the article dated 27.06.2014 titled “Fakes at Art Auction
Raise Huge Storm” which was published on the date of auction and was authored
by Ms.Neelam Raj (Accused No.4) and it makes no reference to the article
authored by the appellant.
(b) There is no
allegation that the appellant contributed or assisted or was involved in the
said article. Even in the complaint, there is only a bare allegation that the
accused have all, in connivance with one another, orchestrated a smear campaign
that is intended at ruining the reputation of the complainant and the news
articles have been engineered to appear on the date of auction. Thus, there is
a bald averment to substantiate the allegation of conspiracy.
(c) The appellant
authored a completely different article titled ‘Art’s Identity Crisis’,
which was published on 20.07.2014 i.e., almost a month after the auction dated
27.06.2014. She did not draw any conclusion regarding the authenticity of the
paintings that the complainant was auctioning, rather the said article focused
on the challenge of authenticating Indian art and how it depends less on
science and more on an artist’s family in India. Therefore, the appellant’s
article was not defamatory and did not constitute the offence
under section 499/500 IPC.
(d) Reliance was also
placed on the decisions of this Court in Aroon Purie v. State of NCT of
Delhi[2022 SCC OnLine SC 1491] and Iveco
Magirus Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya[(2024) 2 SCC 86] , wherein, it was held that there exists no
bar that the exceptions to section 499 IPC can be regarded only at
the stage of trial.
(e) However, the High
Court on the basis of the article authored by the Accused No.4 and without
having applied judicial mind to the article allegedly authored by the
appellant, erred in upholding the complaint and criminal proceedings emanating
therefrom before the Magistrate.
(f) The Magistrate
except the complainant, did not examine any other witnesses. The appellant
resides in Mumbai, i.e., outside the territorial jurisdiction of the Magistrate
Court, but no inquiry was conducted before issuance of summons, and thus, there
was no substantial compliance of the mandatory procedure under section
202 Cr.P.C. Hence, the summoning order was bad in law.
(g) Mere factual
reference to another allegedly defamatory article or recording of a third-party
view by a journalist cannot be held as defamatory and doing so would severely
impact freedom of press and places the appellant in jeopardy of being a victim
of the law of land being incorrectly applied against her and causing a
miscarriage of justice.
(h) It is alleged that
the complainant appears to be a serial litigator taking recourse to the
criminal process only to stifle the freedom of speech and expression of the
press when art experts began to question the authenticity of the paintings
being sold by the complainant in its auction.
(i) This Court in
Bloomberg Television Production Services India Private Limited & Ors. v.
Zee Entertainment Enterprises Limited[2024
INSC 255], has recognized that the constitutional mandate of protecting
journalistic expression cannot be understated.
(j) Similar defamation
complaint filed by the respondent was quashed by this Court vide judgment dated
20.07.2022 passed in Criminal Appeal No.1008 of 2022 arising out of SLP (Crl)
No.6732/2019 titled ‘M/s. DAG Pvt. Ltd v. Bid & Hammer Auctioneers (P)
Ltd.
With these
submissions, learned counsel prayed to allow the appeal and quash the criminal
proceedings initiated against this appellant.
8.
The learned counsel for the appellants / Accused Nos.8, 9, 10 and 13 [SLP
(Crl.) No. 15653 of 2024] made the following submissions:
(a) The trial court
overlooked the news articles written by the appellants and erred in issuing
process only on the basis of the respondent’s interpretation of the news
articles made in the complaint and his sworn statement. Even the High Court in
the impugned order, referred to only the article written by Ms. Neelam Raj
(Accused No.4) and did not consider the news articles written by the appellants
to see whether the same were defamatory or not.
(b) The Respondent in
paragraph 16 of the complaint stated that Accused No.5-Maulik Vyas and the
Appellant No.4 (Accused No.13) co-authored the article dated 27.06.2014 in the
Economic Times, however, a bare perusal of the said article shows that it is
said to be authored by Accused no 5-Maulik Vyas and only inputs are said to
have been given by Accused No.13. This article only provides information about
exchange of legal notices and mentions the comments of the advocate of the
respondent.
(c) Since all the
appellants are having office/residents at Mumbai and Kolkata i.e., outside the
territorial jurisdiction, the Magistrate ought to have conducted inquiry as
required section 202 Cr.PC, by examining witnesses other than the
complainant before issuing process, which was not done.
(d) No reasons have
been given in the summoning order, with respect to delineating the role of each
accused, in light of the judgement of this Court in Pepsi Foods Ltd. and
Others v. Special Judicial Magistrate and Others9.
(e) The respondent did
not adduce any legal evidence and his statement manifestly failed to prove the
allegation of defamation against the appellants.
(f) The complaint was
also fundamentally flawed as self-estimation is not defamation. Since no
witness has come to say that complainant has fallen in its estimation/ no third
person had come before the Magistrate to even prima facie claim that the
reputation of the Respondent had been lowered in their estimation.
Stating so, the
learned counsel sought to quash the criminal proceedings initiated against the
appellants based on the private complaint filed by the respondent.
9.
The learned counsel for the appellant / Accused No.4 [SLP (Crl.) No.16153 /
2024] made the following submissions:
(a) The appellant
wrote two news articles, which were carried in different editions using
different headlines as decided by the desk. It was stated that portions of an
article get deleted as per the discretion of the editor of that edition.
The impugned order of
the High Court discussed only one article and remained completely silent on the
other article of the appellant and hence, it is liable to be set aside.
(b) The news articles
merely state that experts have raised questions without making assumptions /
conclusions against the respondent and therefore, (1998) 5 SCC
749 the same would not constitute the offence of defamation.
(c) Further, the news
articles were published by the appellant in furtherance of an article
previously published in The Indian Express, which was already in public domain,
and the subsequent debate initiated by Samindranath Majumdar on social
networking websites.
(d) In the article
published, the statement of various art experts and family members of artists,
such as, Rukhsana Pathan Ara, Susobhan Adhikary, Prof.R.Sivakumar, Balaka
Bhattacharjee, Ashish Anand, Rajani Prasanna Hebbar has been quoted; and no
judgment on any works of art was given by the appellant. However, the trial
court without looking into the entire contents of the publication, issued
process on the basis of the respondent’s interpretation of the news articles in
the complaint and his sworn statement.
(e) The respondent did
not adduce any legal evidence and also the statements of the complainant
manifestly fail to prove the allegation of defamation. Further, the summoning
order was fundamentally flawed as no third person had come before the
Magistrate to even prima facie state that the reputation of the respondent had
been lowered in their estimation. In the absence of this material, the very
summoning order is bad in law.
(f) Without
considering all these aspects, the High Court erred in dismissing the criminal
petition by the order impugned herein, which suffers from serious and glaring
infirmities and is hence, liable to be set aside.
10.
Per contra, the learned counsel appearing for the complainant / respondent
submitted that the complainant enjoys a rich legacy that is enviable having
been incorporated by persons of impeccable character and reputation. In
contrast, the defamatory news articles have had a serious and adverse impact on
the reputation of the complainant company. The news articles were widely
circulated and caused considerable harm to the company’s business interests. As
a result, the company's reputation has been significantly tarnished, and its
credibility has been undermined in the eyes of its clients, partners, and the
public. In light of the substantial reputational damage caused, the respondent
preferred a private complaint under Section 200 Cr.P.C., against the
accused for committing defamation. The Magistrate after careful consideration
of the defamatory nature of the news articles in question, directed to register
the complaint and issue summons to the accused.
10.1.
The learned counsel further submitted that the complaint itself establishes the
appellants’ role in the publication of the defamatory news articles in the
newspapers. The complainant has sufficiently outlined the defamatory nature of
the news articles, which caused harm to their reputation. The issuance of
summons by the trial Court is consistent with the legal principles governing
the stage of cognizance and process issuance, where a detailed inquiry into the
merits of the case is not required. That apart, the High Court's observations,
including those in paragraph 3 of the impugned order, are based on a prima
facie appreciation of the facts and do not amount to prejudging the case. It is
well- settled that at the stage of summoning, the complainant need not
prove their case beyond doubt; a mere prima facie case suffices. Thus,
according to the learned counsel, the High Court correctly dismissed the
challenge to the summons and the same need not be interfered with by this
court.
11.
We have heard the learned counsel appearing on both sides and also perused the
materials available on record.
12.
Vide order dated 12.08.2024[The
petitioner is the Editorial Director of Bennett Coleman and Company Limited.
Mr.R.Basant, senior counsel appearing on behalf of the petitioner submits that:
(i) The complaint
lacks specific allegations of acts or omission by the petitioner (except
allegations of a general nature);
(ii) The High Court
erroneously assumed that the petitioner is the Editor of all the newspapers and
publications of the Bannett Coleman and Company Ltd and is, therefore,
responsible for all their contents; and
(iii) Separate
individuals have been designated under Section 7 of the Press and
Registration of Books Act 1867 and hence the complaint of defamation against
the petitioner was not maintainable.
3 Issue notice
returnable on 9 September 2024.
4 Pending further
orders, there shall be a stay of further proceedings in connection with
Complaint Case No 18491/2016.] in SLP (Criminal) No.10212 of 2024, this Court
granted an order of interim stay of all further proceedings in connection with
Complaint Case No.18491/2016 until further orders. Similar order was passed by
this Court in SLP (Criminal) No.13443 of 2024 as well, on 14.10.2024.
Consequently, such benefit was also extended to the appellant in SLP (Criminal)
No.15653 of 2024 and the appellants in SLP (Criminal) No.16153 of 2024, vide
orders dated 11.11.2024 and 14.11.2024 respectively.
LEGAL
PROVISIONS
13.
At the outset, we refer to the relevant legal provisions applicable to the
present case, as outlined below:
(a) The Press and
Registration of Books Act, 1867 Section 1 – Interpretation clause ‘Editor'
means the person who controls the selection of the matter that is published in
a newspaper.
‘Newspaper’ means any
printed periodical work containing public news or comments on public
news Section 5 Rules as to publication of newspapers. No newspaper
shall be published in India, except in conformity with the rules hereinafter
laid down:
(1) Without prejudice
to the provisions of section 3, every copy of every such newspaper shall
contain the names of the owner and editor thereof printed clearly on such copy
and also the date of its publication. (2) ……"
Section 7
"Office copy of
declaration to be prima facie evidence. In any legal proceeding whatever, as
well civil as criminal, the production of a copy of such declaration as is
aforesaid, attested by the seal of some Court empowered by this Act to have the
custody of such declarations, or, in the case of the editor, a copy of the
newspaper containing his name printed on it as that of the editor shall be held
(unless the contrary be proved) to be sufficient evidence, as against the
person whose name shall be subscribed to such declaration, or printed on such
newspaper, as the case may be, that the said person was printer or
publisher, or printer and publisher (according as the words of the said declaration
may be) of every portion of every newspaper whereof the title shall correspond
with the title of the newspaper mentioned in the declaration, or the editor of
every portion of that issue of the newspaper of which a copy is produced."
13.1.
It is vivid from the above provisions that every newspaper must clearly mention
the names of its owner and editor, ensuring transparency in publication.
Furthermore, a statutory presumption is cast upon the editor, who is
responsible for the selection of content that is subsequently published, making
him accountable for the same unless proven otherwise.
(b) Indian Penal
Code, 1860
Section 499
Defamation. Whoever, by words either spoken or intended to be read, or by signs
or by visible representations, makes or publishes any imputation concerning any
person intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, is said, except in the
cases hereinafter expected, to defame that person.
Explanation 1.— It may
amount to defamation to impute anything to a deceased person, if the imputation
would harm the reputation of that person if living, and is intended to be
hurtful to the feelings of his family or other near relatives.
Explanation 2.— It may
amount to defamation to make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3.— An
imputation in the form of an alternative or expressed ironically, may amount to
defamation.
Explanation 4.— 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.
Section 500 Punishment
for defamation. Whoever defames another shall be punished with simple
imprisonment for a term which may extend to two years, or with fine, or with
both.
13.2.
From the above provisions, it is clear that defamation under section
499 IPC necessitates both an intention to harm or knowledge that the
imputation is likely to cause harm, and that the imputation must be capable of
lowering the reputation of the person in the estimation of others. In other
words, the essence of defamation lies not merely in the making of an imputation
but in its effect on the perception of the public, thereby impacting the
standing of the person in society.
(c) Criminal
Procedure Code, 1973
Section 202
Postponement of issue
of process.
(1) Any Magistrate, on
receipt of a complaint of an offence of which he is authorised to take
cognizance or which has been made over to him under section 192 may, if he
thinks fit, [and shall, in a case where the accused is residing at a place
beyond the area in which he exercises his jurisdiction] [Inserted by Act 25 of
2005, Section 19 (w.e.f. 23-6-2006).] postpone the issue of
process against the accused, and either inquire into the case himself or direct
an investigation to be made by a police officer or by such other person as he
thinks fit, for the purpose of deciding whether or not there is sufficient
ground for proceeding :
Provided that no such direction for investigation
shall be made, -
(a) where it appears
to the Magistrate that the offence complained of is triable exclusively by the
Court of Session; or
(b) where the
complaint has not been made by a Court, unless the complainant and the
witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry
under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses
on oath:
Provided that if it
appears to the Magistrate that the offence complained of is triable exclusively
by the Court of Session, he shall call upon the complainant to produce all his
witnesses and examine them on oath.
(3) If an investigation
under sub-section (1) is made by a person not being a police officer, he shall
have for that investigation all the powers conferred by this Court on an
officer-in-charge of a police station except the power to arrest without
warrant.”
13.3. The above provision clearly stipulates
that upon receiving a private complaint under section 200 Cr.P.C.,
the Magistrate must mandatorily conduct an inquiry or investigation before
proceeding to issue process against the accused, if such accused resides outside
the jurisdiction of the Court. In other words, the Magistrate must examine
witnesses before issuing summons in cases where the accused resides outside the
Magistrate’s jurisdiction. This mandatory requirement of inquiry or
investigation was introduced through section 19 of the Code of
Criminal Procedure (Amendment) Act (Central Act 25 of 2005) which came into
effect from 23.06.2006 by introducing the words ‘and shall, in a case where the
accused is residing at a place beyond the area in which he exercises his jurisdiction’.
13.4.
The above requirement has been eruditely elucidated by this Court
in Abhijit Pawar v. Hemant Madhukar Nimbalkar[(2017) 3 SCC 528]. The relevant paragraphs of the said
judgment are extracted below:
“23. Admitted position
in law is that in those cases where the accused is residing at a place beyond
the area in which the Magistrate exercises his jurisdiction, it is mandatory on
the part of the Magistrate to conduct an enquiry or investigation before
issuing the process. Section 202 CrPC was amended in the year 2005 by
the Code of Criminal Procedure (Amendment) Act, 2005, with effect from
22-6-2006 by adding the words “and shall, in a case where the accused is
residing at a place beyond the area in which he exercises his jurisdiction”. There
is a vital purpose or objective behind this amendment, namely, to ward off
false complaints against such persons residing at a far-off places in order to
save them from unnecessary harassment. Thus, the amended provision casts an
obligation on the Magistrate to conduct enquiry or direct investigation before
issuing the process, so that false complaints are filtered and rejected. The
aforesaid purpose is specifically mentioned in the note appended to the Bill
proposing the said amendment.
24. The essence and
purpose of this amendment has been captured by this Court in Vijay Dhanuka
v. Najima Mamtaj [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638:
(2015) 1 SCC (Cri) 479] in the following words: (SCC p. 644, paras 11-
12)
“11. Section 202 of
the Code, inter alia, contemplates postponement of the issue of the process ‘in
a case where the accused is residing at a place beyond the area in which he
exercises his jurisdiction’ and thereafter to either inquire into the case by
himself or direct an investigation to be made by a police officer or by such
other person as he thinks fit. In the face of it, what needs our determination
is as to whether in a case where the accused is residing at a place beyond the
area in which the Magistrate exercises his jurisdiction, inquiry is mandatory
or not.
12. The words ‘and
shall, in a case where the accused is residing at a place beyond the area
in which he exercises his jurisdiction’ were inserted by Section 19 of the Code
of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-
6-2006. The aforesaid amendment, in the opinion of the legislature, was
essential as false complaints are filed against persons residing at far-off
places in order to harass them. The note for the amendment reads as follows:
‘False complaints are
filed against persons residing at far-off places simply to harass them. In
order to see that innocent persons are not harassed by unscrupulous persons,
this clause seeks to amend sub-section (1) of Section 202 to make it obligatory
upon the Magistrate that before summoning the accused residing beyond his
jurisdiction he shall enquire into the case himself or direct investigation to
be made by a police officer or by such other person as he thinks fit, for
finding out whether or not there was sufficient ground for proceeding against
the accused.’ The use of the expression “shall” prima facie makes the inquiry
or the investigation, as the case may be, by the Magistrate mandatory. The word
“shall” is ordinarily mandatory but sometimes, taking into account the context
or the intention, it can be held to be directory. The use of the word “shall”
in all circumstances is not decisive. Bearing in mind the aforesaid principle,
when we look to the intention of the legislature, we find that it is aimed to
prevent innocent persons from harassment by unscrupulous persons from false
complaints. Hence, in our opinion, the use of the expression “shall” and the
background and the purpose for which the amendment has been brought, we have no
doubt in our mind that inquiry or the investigation, as the case may be, is
mandatory before summons are issued against the accused living beyond the
territorial jurisdiction of the Magistrate.”
26. The requirement of
conducting enquiry or directing investigation before issuing process is,
therefore, not an empty formality. What kind of “enquiry” is needed under this
provision has also been explained in Vijay Dhanuka case [Vijay Dhanuka
v. Najima Mamtaj, (2014) 14 SCC 638: (2015) 1 SCC (Cri) 479], which is
reproduced hereunder: (SCC p. 645, para 14)
“14. In view of our
answer to the aforesaid question, the next question which falls for our
determination is whether the learned Magistrate before issuing summons has held
the inquiry as mandated under Section 202 of the Code. The word “inquiry” has
been defined under Section 2(g) of the Code, the same reads as
follows:
‘2. (g) “inquiry”
means every inquiry, other than a trial, conducted under this Code by a
Magistrate or court;’ It is evident from the aforesaid provision, every inquiry
other than a trial conducted by the Magistrate or the court is an inquiry. No
specific mode or manner of inquiry is provided under Section 202 of the Code.
In the inquiry envisaged under Section 202 of the Code, the witnesses are
examined whereas under Section 200 of the Code, examination of the complainant
only is necessary with the option of examining the witnesses present, if any.
This exercise by the Magistrate, for the purpose of deciding whether or not
there is sufficient ground for proceeding against the accused, is nothing but
an inquiry envisaged under Section 202 of the Code.”
27. When we peruse the
summoning order, we find that it does not reflect any such inquiry. No doubt,
the order mentioned that the learned Magistrate had passed the same after
reading the complaint, verification statement of the complainant and after
perusing the copies of documents filed on record i.e. FIR translation of the
complaint, affidavit of advocate who had translated the FIR into English, etc…
28. Insofar as these
two accused persons are concerned, there is no enquiry of the nature enumerated
in Section 202 CrPC.
29. The learned
Magistrate did not look into the matter keeping in view the provisions
of Section 7 of the Press Act and applying his mind whether there is
any declaration qua these two persons under the said Act and, if not, on what
basis they are to be proceeded with along with the Editors. Application of mind
on this aspect was necessary. It is made clear that this Court is not
suggesting that these two accused persons cannot be proceeded with at all only
because of absence of their names in the declaration under the Press Act.
What is emphasised is that there is no presumption against these persons
under Section 7 of the Press Act and they being outside the
territorial jurisdiction of the Magistrate concerned, the Magistrate was
required to apply his mind on these aspects while passing summoning orders qua
A-1 and A-2.
DISCUSSIONS
AND FINDINGS
14.
It appears to us that the complainant / respondent herein preferred a single
complaint against 14 accused for different news articles written on different
dates and published in different editions in different States of the Country,
viz., Delhi, Kolkata, Mumbai, Bangalore and Pune. Upon receipt of the
complaint, the respondent was examined and his sworn statement was recorded.
Thereafter, the Magistrate took cognizance of the complaint and directed to
register the same and issue summons to the accused. Consequently, the company
(A1) and the appellants herein preferred criminal petition before the High
Court to quash the criminal proceedings initiated against them. Vide order
dated 18.06.2024, the High Court quashed the complaint only in respect of
the Accused No.1 – Bennett Coleman and Co. Ltd., and dismissed the criminal
petition insofar as the appellants are concerned. Therefore, these criminal
appeals are filed by the appellants.
15.
According to the complainant / respondent herein, the defamatory news articles
printed, published and circulated by all the accused caused readers to view the
complainant with suspicion and also fostered an unjustifiable and unfounded
public opinion that the works offered for sale by the complainant through
public auction could be fake. It was further alleged in the complaint that the
second accused being the editorial director of the company (A1), oversaw the
contents of the newspapers and was responsible for news articles’ publication;
and all other accused, in connivance with each other published various news
articles in various newspapers with an intent to scuttle the success of the
complainant’s auction by harming its reputation or lowering its image in the
estimation of the public, thereby committing the offences punishable
under Sections 499 and 500 IPC.
16.
On the other hand, the appellants entirely refuted the allegations raised in
the complaint filed by the respondent. While they have commonly contended that
the Magistrate failed to comply with the procedure mandated under section
202 Cr.P.C., their individual responses to the specific allegations
regarding their respective publications are tabulated below for ease of
reference:
|
Name
of the appellant / accused |
Details
of Publication |
Responses
to the allegations |
|
Jaideep
Bose – A2 SLP (Crl.) No. 10212/2024 |
Editorial
Director of the Company (A1 |
He
neither authored nor was connected with
the publication of the alleged news articles
and hence, he cannot be held liable
for the same. |
|
Nergish
Sunavala – A12 SLP
(Crl.) No. 13443/2024 |
Nergish
Sunavala – A12 SLP
(Crl.) No. 13443/2024 |
The
article pertaining to the appellant was purely based on existing public discourse
and previously published material by
other reputed sources. There was no
intention to defame the respondent and
the article was aimed at informing the
public about matters of significant
interest and concern. No Judgment or
any insinuations was made. |
|
Swati
Deshpande – A8 Appellant
No.1 in SLP (Crl.) No.15653/2024 |
28.06.2014
Times of India Mumbai |
The
article on the face of it, is not defamatory. A holistic reading of the article rather shows that a balanced view was
taken as it merely presents the views of all parties concerned, including the complainant. There is nothing in the article
to suggest any intention or knowledge of causing disrepute to the complainant. |
|
Shubro
Niyogi– A9 Appellant No.2 in SLP
(Crl.) No.15653/2024 |
29.06.2014
Times of India, Kolkata |
The
article nowhere mentions the name of
the complainant, rather only reports on calls by art experts for the creation
of a panel
of experts to scrutinize authenticity of artworks. There was no intention to
disrepute the complainant. When read in its
entirety, the article cannot be considered
as defamatory. |
|
Ratnottam
Sengupta –A10 Appellant
No.3 in SLP (Crl.) No.15653/2024 |
06.07.2014 Times
o fIndia Kolkata |
A
reading of article shows that it merely reports on the controversy surrounding
artworks and in a balanced manner, includes the comments and the position of
the complainant, while also presenting the views of various other experts in
the art-field. The reading of the article in its entirety
does not constitute defamation. |
|
Rashmi
Menon– A13 Appellant No.4 in SLP
(Crl.) No.15653/2024 |
27.06.2014
Economic Times,
New Delhi |
The
article clearly shows that the appellant only gave certain inputs.
Regardless, a reading of the article shows that it merely reports on M. F.
Hussain Foundation having sent a legal notice to the complainant, while also
displaying the response of the complainant, which at that time had expressed
that it was not Aware
of such notice. This article in no manner
can be said to be defamatory. |
|
Neelam
Raj – A4 Appellant in SLP
(Crl.) No. 16153/2024 |
27.06.2014
Times of India,
Bangalore 27.06.2014 Times
of India,
New Delhi 27.06.2014, Times
of India, Mumbai 27.06.2014
Times of India, Pune 28.06.2014 Times of India,
Bangalore |
A
reading of the news articles authored by
the appellant cannot be said to be defamatory.
These news articles, read in their
entirety, merely report on the views of
art experts and cautions people at large regarding fake art and nothing more. None of the news articles, suggests that there
was any intention to harm the complainant’s reputation. |
17.
Before appreciating the rival contentions, it is necessary to look into the
specific allegations raised in the complaint against each of the appellants,
which are extracted as under:
“2. ……The second
accused is the editorial director of the first accused. The third accused is
the executive editor of the first accused. The second and third accused oversee
the content of the newspapers and are responsible for the contents….
12. On 27.06.2014, the
fourth accused, Ms. Neelam Raj, wrote an article that carried the headline,
"Fakes at Art Auction Raise Huge Storm". On the front page of the
Times of India, Bangalore Edition itself and right under this headline, there
is a reference to the complainant by name. The article continues on page 14
with another headline, "Biggest Counterfeit Indian Art Controversy Hits
Auction".
Under this headline,
there are further states, "A copy or two has cropped up in the most
respected of auction houses but Bangalore based Bid and Hammer's forthcoming
auction has been assailed by what perhaps is the biggest controversy to come to
light in the Indian art market". The article also alleges that the accused
tried to contact the complainant's chairman, but was unsuccessful. The
complainant never received such calls and it is unethical and wrong to publish
an article without even clarifying the facts. It also asserts that the
complainant was "caught" in a similar controversy in 2010 over the
work of a Souza work. Further, incidents and works that have nothing to do with
the complainant are narrated, giving the reader the impression that the
complainant is involved in these works also and is a habitual dealer in fake
arts and paintings…
13. These allegations
and insinuations are clearly and palpably false and render a highly negative image
of the works brought to auction by the complainant after extensive study and
verification at considerable cost and despite the highly credible process of
authentication of each work brought out on auction. The allegations also defame
eminent consignors such as granddaughter of Maharaja of Burdwan, Namrata
Shirodkar and Mahesh Babu and others.
14. On 27.06.2014
itself, the fourth accused, Ms. Neelam Raj, further authored similar
insinuations in the Delhi, Mumbai, and Pune editions of the Times of India
under the heading, "Controversy Over Fakes Hits Art Auction" on the
front page. On the 12th page of the same edition under the headline,
"Experts Question Authenticity of Signatures dates in auction Art"…
15. The said accused
followed this up with another defamatory article on 28.06.2014, the day after
the auction with the headline, "More Fake Trouble for Indian Art Mart. The
article starts with the words, "Fake" alleging that it
continued to cause a tizzy in the art world especially concerning the
works featured in the auction of the complainant.
16. On 27.06.2014, the
fifth accused. Mr. Maulik Vyas and Ms. Rashmi Menon, the thirteenth accused,
co-authored an article in the Economic Times with the headline, "Legal
Notice Over Fake Hussains” including on the first page. The article refers to a
legal notice issued to the complainant on the very day that the notice was sent
and even before it was received by the complainant. This clearly shows the
intention of the article was to defame the complainant, knowing fully well that
readers of the Economic Times include leading industrialists, who are well
known connoisseurs to art and potential customers of the complainant…. It is
pertinent to note that the said two accused conveniently ignored the rebuttal
and clarifications issued by the complainant against the false charges levelled
on the complainant, despite this rebuttal being sent to them well in time for
publication the following day. This shows the mala fide intent to defame the
complainant, in fact. Subsequently, the thirteenth accused, Ms. Rashmi Menon,
confirmed receipt of the rebuttal from the complainant. When asked why she did
not publish the rebuttal, she stopped replying / corresponding with the
complainant. This shows the mala fide intent to defame the complainant.
18. On 13.06.2014, the
eighth accused, Ms. Swati Deshpande, authored an article in the Times of India,
Mumbai Edition with the headline, "Auction House Denies 22 Hussain Works
are Fake". The article refers to the details of the legal notice and
reply, thus casting doubts over the work of the complainant. This is an
insinuation that has tarnished the image of the complainant.
19. On 29.06.2014, the
ninth accused Mr. Shubro Niyogi, authored an article in the Times of India,
Kolkata Edition insinuates that the auction held by the complainant contained
fakes. The mala fide intention of the ninth accused is clearly established from
the fact that the paintings published in support of the article were not even
featured in the catalogue as they did not form part of the auction. So the
accused was not even aware of the paintings at the auction but took it upon
himself to call them fakes. This insinuation has tarnished the image of the
complainant.
20. On 06.07.2014, the
tenth accused. Mr. Rathnotham Sengupta, authored an article in the Times of
India, Kolkata Edition, with the headlines "Who Speaks the Last Word on
Fakes". The article specifically insinuates that Lots 82 and 83 of the
auction held by the complainant were identified as fakes. This insinuation has
tarnished the image of the complainant.
22. 20.07.2014, the
Twelfth accused, Ms. Nargish Sunavala, authored an article in the Times of
India, Bangalore Edition, insinuating that the works auctioned by the
complainant do not have proper authenticity certificates, deliberately
suppressing the crucial processes involved in the complainant's auction, which
was in the public domain. This insinuation has tarnished the image of the
complainant.”
18.
It is not in dispute that the appellant (A2) Jaideep Bose is the Editorial
Director of the company and other appellants are authors of the alleged
defamatory news articles published in various newspapers. The respondent filed
a single private complaint against the accused for committing the offence of defamation.
19.
Let us first deal with the case of the appellant (A2) Jaideep Bose, who stands
on a different footing from the other accused. He is serving as the Editorial
Director of the company, which is the owner of all the newspapers in question.
According to him, he is neither the author nor the editor of the news articles
in question and his role is merely administrative in nature, with no direct
involvement in the publication process. He further states that there was
procedural irregularity in the process of issuance of summons as he resides in
Mumbai, which falls outside the jurisdiction of the Court, and hence, the
Magistrate was required to conduct an inquiry by examining witnesses as
mandated under Section 202 Cr.P.C.
19.1.
As already reiterated, it is the editor who plays a key role in the publication
process bearing responsibility for ensuring that the content published adheres
to legal standards, including laws surrounding defamation. It is well
settled that the Press and Registration of Books Act, 1867 (“the
Act”) imposes a higher degree of responsibility and liability on an
editor. Section 5 of the Act mandates that every newspaper or
periodical publication must specify the name of the editor and
owner. Section 7 creates a rebuttable presumption that the editor
whose name is printed in the newspaper shall be held to be the editor in any
civil or criminal proceedings in respect of that publication. Since an “editor”
has been defined as the person who controls the selection of the matter that is
published in a newspaper, the presumption goes to the extent of holding that he
was the person, who controlled the selection of the matter that was published
in the newspaper. However, merely because the Act does not mention persons
holding other roles in a publication of the company, such as an Editorial
Director, or mandate the publication of their names, the same does not imply
that such persons cannot be made liable for any defamatory content. The key
distinction is that unlike an editor, against whom a statutory presumption is
imposed, there is no such presumption against the editorial director at the
outset [See: K.M. Mathew v. K.A. Abraham[2002 (6) SCC 670]].
19.2.
Turning to the complaint, which is also necessary in it, are specific
allegations regarding the role of the accused in the publication process. This
Court in Gambhirsinh R. Dekare v. Falgunbhai Chimanbhai Patel[(2013) 3 SCC 697] observed that
while the Act does not recognise any other legal entity viz. Chief Editor,
Managing Editor, etc. for raising a presumption, such individuals can still be
proceeded against, but only when specific allegations are made against them. In
the present case, the complaint merely alleges that the appellant (A2) oversaw
the publications. No other averments were made to establish as to how the
appellant (A2) was responsible for controlling the selection of contents of the
newspaper publications. Furthermore, as already stated above, he is the
editorial director of the company and not of the individual newspapers. Thus,
in our view, such a broad, general or blanket statement without specific or
substantive details cannot justify the issuance of summons.
19.3.
The Magistrate, without a proper examination and inquiry, proceeded to issue
summons to the appellant (A2). It is also pertinent to note here that the
appellant (A2) resides in Mumbai, which falls outside the jurisdiction of the
concerned Magistrate. In such a scenario, as discussed earlier, the Magistrate
was required to proceed with the complaint in accordance with section
202(1) Cr.P.C. However, no such inquiry was conducted in the present case.
Therefore, considering all these aspects, we are of the opinion that the complaint
is not maintainable against the appellant (A2).
20.
Regarding the appellants in the other appeals, it is evident from the orders of
the trial Court as well as the High Court that not all news articles
individually authored by the various accused were considered. While passing the
impugned order, the High Court referred only to one article authored by Ms.
Neelam Raj (A4) and neither took into account nor discussed the other news
articles authored by the remaining accused. Furthermore, the mandatory
procedure under section 202 Cr.P.C., was clearly not followed. The
Appellants viz., A8, A9, A10, A12 and A13 reside in Mumbai / Kolkata, whereas
the complaint was filed in Bangalore. The complainant failed to produce any
witness to prima facie establish that the alleged imputations had lowered their
reputation in the estimation of others and the Magistrate, after merely
reviewing the complainant’s statement, proceeded to issue summons. Thus, the
Magistrate’s order clearly suffers from procedural irregularity. Ordinarily,
such irregularities would warrant a remand. However, in the present case, the
auction was conducted on 27.06.2014 and the complaint was filed on 22.08.2014.
No material has also been placed before us to suggest that the auction was
unsuccessful or that any damage or loss was actually caused, due to the alleged
news articles published in the newspapers. Irrespective of the same, at this
stage, remanding the matter for fresh examination of witnesses before issuance
of summons would serve no useful purpose, given the remote likelihood of
securing witnesses. It would only prolong the litigation yielding little to no
benefit especially, since the auction has already concluded and more than a
decade has passed. We also take note of the submissions of the
learned counsel for the appellants that there is no intent to defame or
harm the complainant’s reputation. Notably, this Court vide common order dated
20.07.2022 titled ‘M/s.DAG Pvt. Ltd. V. M/s.Bid & Hammer Auctioneers (P)
Ltd.’ allowed similar criminal appeals bearing Nos. 1008/2022 etc. cases,
arising from the complaint filed by the same complainant. In view of the above
stated reasons, to meet the ends of justice, we are inclined to quash the order
passed by the High Court as well as the issuance of summons by the Magistrate.
Consequently, the criminal proceedings initiated against the appellants are
also liable to be quashed.
21.
Before parting, we find it necessary to emphasise that right to freedom of
speech and expression guaranteed under Article 19(1)(a) of the
Constitution of India is paramount. At the same time, it is reiterated that
those working in the media, particularly, individuals in key positions,
authors, etc., must exercise utmost caution and responsibility before publishing
any statements, news, or opinions. The power of the media in shaping public
opinion is significant and the press possesses the ability to influence public
sentiments and alter perceptions, with remarkable speed. As aptly stated by
Bulwer Lytton, “The Pen is mightier than the sword”. Given its vast reach, a
single article or report can resonate with millions, shaping their beliefs and
judgments, and it has the capability to cause severe damage to the reputation
of those concerned, with consequences that may be far-reaching and enduring.
This highlights the critical need for accuracy and fairness in media reporting,
especially when dealing with matters having the potential to impact the
integrity of individuals or institutions. Keeping these aspects in mind, publication
of the news articles must be done in public interest and with good faith.
22.
With the aforesaid observations, we allow all these appeals and quash the
impugned order passed by the High Court and summoning orders as well as the
criminal complaint filed by the respondent, as far as the appellants herein are
concerned. Connected Miscellaneous Application(s), if any, shall stand disposed
of.
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