IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4354 OF 2016 BETWEEN:
M/S BID AND HAMMER AUCTIONEERS PVT.LTD A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT,1956 HAVING ITS OFFICE AT BID AND HAMMER PREVIEW HALL 11 WHITEFIELD MAIN ROAD BANGALORE – 560 066 REPRESENTED BY ITS DIRECTOR AND AUTHORIZED SIGNATORY MR ANKUSH DADHA (BY SRI: KASHYAP N NAIK & SRI: VIVEK D.R., ADVOCATES) AND 1. MR. RAJ KAMAL JHA AGED ABOUT 55 YEARS CHIEF EDITOR 2. MR UNNI RAJEN SHANKAR AGED ABOUT 52 YEARS EDITOR 3. MS VANDANA KALRA AGED ABOUT 42 YEARS ... PETITIONER SPECIAL CORRESPONDENT -FEATURES 4. THE INDIAN EXPRESS PVT. LTD HAVING ITS REGISTERED OFFICE AT 2ND FLOOR EXPRESS TOWERS NARIMAN POINT MUMBAI-400 021 5. MR VIVEK GOENKA AGED ABOUT 45 YEARS CHAIRMAN AND MANAGING DIRECTOR RESPONDENTS 1,2,3 & 5 ARE WORKING AT ”THE INDIAN EXPRESS” NEW DELHI EDITION INDIAN EXPRESS BUILDING B1/B, SECTOR-10 NOIDA-201301 (BY SRI: JOSHUA H SAMUEL & SRI: CHRISTOPHER E., ADVOCATES) ... RESPONDENTS THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED 23.04.2016 CRL.R.P.3/2016 ON THE FILE OF THE PRL. S.J., BANGALORE RURAL DISTRICT, BANGALORE AND DISMISS THE PETITION IN CRL.R.P.3/2016 ON THE FILE OF THE PRL. S.J., BANGALORE RURAL DISTRICT, BANGALORE.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is filed seeking to quash the impugned order dated 23.04.2016 passed by the Principal Sessions Judge, Bengaluru Rural District, Bengaluru, in Criminal Revision Petition No.3/2016 whereby the order dated 11.09.2015 passed by the Additional Chief Judicial Magistrate, Bengaluru in P.C.R.No.351/2015 directing registration of the criminal case against the respondents under section 499 punishable under section 500 of IPC has been set-aside.
Heard learned counsel for petitioner and learned counsel for respondents. Perused the records.
2. Petitioner herein filed a private complaint under section 200 Cr.P.C., seeking prosecution of the respondents for the alleged offence under section 499 punishable under section 500 of IPC. Learned Magistrate recorded the sworn statement of the complainant and by order dated 11.09.2015, issued summons to the respondents. The respondents challenged the said order by way of revision under section 397 Cr.P.C. and by the impugned order dated 23.04.2016, learned Sessions Judge allowed the revision petition and set-aside the order dated 11.09.2015 passed by learned Magistrate and consequently, directed to stop further proceedings in C.C.No.6391/2015.
3. Learned counsel for petitioner has vociferously assailed the reasoning assigned by learned Sessions Judge which find place in para 24 of the impugned order. It is the contention of the learned counsel that the publication made by the respondents is per se defamatory. The said publication was made by the respondent acting in concert with each other with a view to lower the reputation of the petitioner/complainant and to cause mistrust among its clientele. Special preview of the auction was scheduled on 21.6.2014 and 24.6.2014. On 19.06.2013, third accused Ms. Vandana Kalra wrote an article that carried the headline, “ ‘same’ Nandalal hangs in NGMA, goes under hammer on June 27”, on the front page of the Indian Express, Bangalore Edition. This article contained unverified statements wherein, at one place, she used the words like “allegedly fake”, and at other place she quoted Prof. Rajeev Lochan, Director of NGMA saying that the work in possession of the complainant “needs to be verified and authenticated”. The article also made a statement defamatory to the complainant by quoting Mr.Samindranath Majumdar, who is said to have stated that he was “strongly doubtful” about one of the work and that three works on auction by the complainant “appear to be copies”. The said publication contained false and distorted facts to convey to the readers that the paintings in possession of the complainant were likely to be fake. The third accused authored similar insinuations in another article published in The Indian Express dated 28.06.2014. This article also used statements that “fewer than half” of over 15 works by Hussain on auction were sold, thus insinuating that the complainant conducted an auction that witnessed a massive offer of fake Hussain works and due to they being fake, remained unsold. In the wake of the above defamatory contents of the publication, learned Sessions Judge was not justified in setting aside the summons issued by learned Magistrate and directing closure of the proceedings against the respondents. In support of his submissions, learned counsel has placed reliance on the following decisions:-
(i) S.Khushboo vs. Kanniammal & Another, (2010) 5 SCC 600;
(ii) K.M.Mathew vs. State of Kerala & Another, (1992) 1 SCC 217;
(iii) Rajangam, Secretary, District Beedi Workers’ Union vs. State of Tamil Nadu & Others, (1992) 1 SCC 221;
(iv) Gambhirsinh R.Dekare vs. Flagunbhai Chimanbhai Patel & Another, (2013) 3 SCC 697;
(v) Subramanian Swamy vs. Union of India, Ministry of Law and Others, (2015) 13 SCC 353;
(vi) Rajesh Rangarajan vs. Crop Care Federation of India & Another, (2010) 15 SCC 163;
(vii) Subramanian Swamy vs. Union of India, Ministry of Law and Others, (2015) 13 SCC 356;
(viii) Subramanian Swamy vs. Union of India, Ministry of Law and Others, 2015 SCC Online SC 614;
(ix) Order in W.P.No.3154-3158/2016 dated 24.06.2019;
(x) Order in Crl.P.No.8692/2015 c/w. Crl.P.No.60/2016, Crl.P.No.1008/2016, Crl.P.No.1036/2016 and Crl.P.No.
1037/2016 dated 19.06.2019; and (xi) Order in Crl.P.No.33/2017 c/w. Crl.P.No.34/2017 dated 11.07.2018.
4. Learned counsel for respondents, however, argued in support of the impugned order contending that the allegations made in the complaint and the publications in Indian Express did not contain any defamatory material against the complainant and under the said circumstance, learned Sessions Judge was justified in setting aside the order of summons issued by learned Magistrate and thus sought to dismiss the petition. In support of his submissions, learned counsel has placed reliance on the following decisions:-
(i) Prabhu Chawla and Others vs. A.U.Sheriff, (1995 Crl.L.J. 1922); and (ii) Order dated 2.8.2018 of Hon’ble High Court of Punjab & Haryana at Chandigarh in Sandesh & Others vs. State of Haryana & Another.
5. Considered the submissions and perused the records.
The key ingredients of the offence of defamation as defined in section 499 of IPC are as follows:
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.
6. The above definition makes it amply clear that in order to render a person liable for prosecution under Section 499 IPC, he must have made or published any imputation concerning the aggrieved person either with intent to harm the reputation of that person or reasonably knowing that the said imputation would cause such harm. Explanation 2 to section 499 further states that it may amount to defamation to make an imputation concerning company or an association or collection of persons as such.
7. In the case in hand, complainant claims to be an auction house based in Bangalore, established by the family belonging to the reputed Dadha Group of Companies who have been in business for 100 years. The complainant claims to enjoy a rich legacy that is enviable as it was incorporated by persons of impeccable character and reputation. The complainant’s team of directors, advisors and specialists have a wealth of international experience and a deep understanding of the complex dynamics of the Indian market. The complainant has established an enviable reputation with various clients and art houses from among the highest echelons of society routinely seeking out the complainant’s services in procuring or selling valuable pieces of art. The complainant established itself as India’s pioneering multi-category auction house and is known to have offered important works by prominent Indian artists such as Raja Ravi Varma, Antonio Xavier Trindade, F N Souza and M F Hussain, besides iconic English artists J.M.W. Turner, William Hodges and French illustrator Etienne Drian amongst others.
8. The grievance of complainant is that the article published in the front page of the Indian Express, Bangalore Edition dated 19.06.2014, written by accused No.3 carried per se defamatory material calculated to harm the reputation of the complainant. I have already extracted the relevant excerpts of the complaint which suggests that the paintings on auction by the complainant were allegedly fake. The statements made in the article suggesting that the paintings put up for auction were “strongly doubtful” and “appeared to be copies” were calculated to suggest to the readers that the complainant has been carrying on auction of fake paintings of doubtful origin. These averments, in my view, prima facie make out the ingredients of the offence under section 499 of IPC.
9. In order to proceed against the accused for the offence under the said provision, the aggrieved person is not required to show that the offending publication has actually resulted in lowering his reputation. Even the intention to harm the reputation of a particular person or reasonable knowledge that such publication is likely to cause such harm is sufficient to make out the ingredients of the offence. As the contents of the impugned order contains clear averments constituting the ingredients of the above offence by direct reference as well as by way insinuations and innuendoes, learned Sessions Judge was not justified in closing the proceedings on the purported reasoning that the business carried on by petitioner was unique and that it was unlikely that general public would read the articles published in the English newspaper. The reasoning assigned by learned Sessions Judge are totally irrelevant and are extraneous to the subject matter of the grievance raised by the complainant. Impugned order reveals that the learned Sessions Judge has not even looked into the offending publication and has not understood the implications of the innuendoes and the motive or the object behind the publication.
10. The argument of the learned counsel for respondents that the said publication was made based on the statement of the petitioner and other persons proficient in the field of art and painting does not diminish the effect of the publication. A reading of the article indicates that it contains not only the statements attributed to others, but also disparaging remarks of the authors in inverted commas, which are summed with the opinion “This is not the first time Bid & Hammer has found itself in the midst of an art controversy”. Therefore the argument that the article was published only with an intention to create awareness about the controversy surrounding the paintings put up for auction cannot be accepted.
11. Coming to contention urged by the respondents that the alleged article was published in Delhi and therefore, no part of cause of action has arisen within the limits of the courts in Bangalore is concerned, suffice it to note that clear averments are made in the sworn statement of the complainant that the said publications were made in The Indian Express, Delhi as well as in its Online version. Therefore, contention urged in this regard is not tenable and is rejected. Even otherwise the said plea could only serve as a defence during trial and not as a ground to quash the prosecution. However, on going through the averments made in the complaint, it is seen that all the respondents were residing outside the limits of Bangalore and under the said circumstance, learned Magistrate ought to have conducted enquiry as mandated under section 202 of Cr.P.C. before issuance of summons to the respondents. Further it is the contention of the learned counsel for respondents that the petition under section 482 Cr.P.C. is not tenable against the orders passed by the revisional court under section 397(1) of Cr.P.C. On all these grounds, learned counsel for respondents has sought to dismiss the petition.
12. Further placing reliance on the decision of this court in Prabhu Chawla and Others vs. A.U.Sheriff, 1995 Crl.L.J. 1922, learned counsel has emphasized that, as per the definition of term “editor” in section 1(1) of the Press and Registration of Books Act, (25 of 1867), ‘editor’ means the person who controls the selection of the matter that is published in a newspaper. There is no reference to resident editor, executive editor, managing editor in the Act. There are no allegations whatsoever in the complaint insofar as respondent Nos.4 and 5 are concerned. Respondent No.4 is the Indian Express Pvt. Ltd., Mumbai and respondent No.5 is described as Chairman and Managing Director of The Indian Express. Respondent No.1 is described as Chief Editor of The Indian Express. In view of the law laid down by this Court, only an “editor” is to answer the charge for the offence under section 499 of Cr.P.C. and hence, the summons issued by learned Magistrate being contrary to the settled proposition of law are liable to be set-aside and therefore learned Sessions Judge has rightly closed the proceedings initiated against the respondents. Hence, there is no justification to interfere with the impugned order and thus, sought for dismissal of the petition.
13. However, insofar as the enquiry required to be conducted by learned Magistrate under section 202 of Cr.P.C. is concerned, a perusal of the complaint lodged by the petitioner clearly indicates that respondents namely accused therein were residents of New Delhi and Bombay.
14. Dealing with Section 202 of Cr.P.C, the Hon’ble Supreme Court of India in ABHIJIT PAWAR VS. HEMANT MADHUKAR NIMBALKAR AND ANOTHER reported in (2017) 3 SUPREME COURT CASES 528 in para 12.1.1 has held as under:
“12.1.1. It is submitted that the procedure stipulated in the said provision is mandatory which imposes an obligation on the Magistrate to ensure that before summoning an accused, who resides beyond his jurisdiction, the Magistrate shall make necessary inquiries 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 is sufficient ground to proceed against the accused. It was submitted that indisputably A-1 resides outside the jurisdiction of the trial court at Kolhapur as he is resident of Pune.”
In para 23, the Hon’ble Supreme Court has laid down as under:
“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.”
Accordingly, the petition is allowed. The impugned order dated 23.04.2016 passed by the learned Principal Sessions Judge, Bengaluru Rural District, Bengaluru, in Criminal Revision Petition No.3/2016 is set-aside. The order dated 11.09.2015 passed by the learned Additional Chief Judicial Magistrate, Bengaluru in PCR.No.351/2015, issuing summons to the respondents is also set-aside.
Matter is remitted to learned Magistrate to comply with the requirements of section 202 of Cr.P.C. and thereafter, proceed in the matter in accordance with law, in the light of the observations made in the course of this order.
Sd/- JUDGE Bss