IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 2238/2016 BETWEEN:
COMMANDANT BALASUBRAMANIAN MOHAN (RETD.) AGED ABOUT 57 YEARS, S/O LATE S.BALASUBRAMANIAN RESIDING AT APARTMENT NO.507, BLOCK JULIAN ALPINE ECO APARTMENTS DODDANEKUNDI, MARTHAHALLI, BENGALURU-560037 ... PETITIONER (By Sri P P HEGDE, ADV.) AND:
DR. B.K.SHIVAPRASAD RAI AGED ABOUT 55 YEARS, S/O KITTANNA RAI, RESIDING AT "SHAURYA", NEAR KRISHNABAGH HOUSE, MARTIN PAIS ROAD, HAT HILL, BEJAI POST, MANGALURU-4. ... RESPONDENT (By Sri NISHIT KUMAR SHETTY, ADV.) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 01.04.2015 (ANNEXURE-A) PASSED BY THE HON'BLE JMFC (II COURT), MANGALURU IN P.C.NO.42/2015 (NOW REGISTERED AS C.C.NO.1811/2015) AND ALL FURTHER PROCEEDINGS IN THE SAID CASE AND ALSO THE ORDER DATED 01.03.2016 (ANNEXURE-B) PASSED BY THE HON'BLE I ADDL. DIST. AND S.J., D.K., MANGALURU IN CRL.R.P.NO.148/2015.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed under Section 482 of Cr.P.C. seeking to quash the order dated 1.4.2015 passed by the JMFC, Mangaluru in P.C.No.42/2015 taking cognizance of the offences punishable under Section 500 of Cr.P.C. and the order dated 1.3.2016 passed by the I Additional District and Sessions Judge, Dakshina Kannada, Mysuru, in Crl.R.P.No.148/2015 confirming the order dated 01.04.2015.
2. Heard learned counsel for petitioner and learned counsel for respondent and perused the records.
3. The principal contention urged by the learned counsel for the petitioner is that the offending publication was made by accused Nos.2 and 3 in “Times of India” based on the criminal proceedings initiated against the complainant in C.C.No.485/2008. As per the Fourth Exception to Section 499 of IPC, it is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or the result of any such proceedings. The impugned publication was merely a report of the charges framed against the petitioners, which do not fall within the ambit of Section 499 of IPC and hence, the order passed by the Court below taking cognizance of the alleged offences is wholly illegal and contrary to the provisions of Section 499 of IPC and therefore, it is liable to be quashed.
In support of his submission, learned counsel has placed reliance on the decision of this Court in the case of T. Sathish U. Pai .vs. Narayan Nagappa Nayak [2002 Crl.L.J.4416] .
4. Repelling the above contentions, learned counsel appearing for respondent pointed out that the impugned publication not only contains the report of the judicial proceedings but also the interview given by the petitioner herein to accused Nos.2 and 3. In the said publication, it is specifically noted that ‘According to Mohan, he was in the UK after he took voluntary retirement in August 2002 and returned to India on December 29, 2006. Further, it is stated that “During my absence, Dr. Raj misbehaved with my wife, Archana and I reprimanded him for the same”. Referring to this portion of the publication, learned counsel has emphasized that the petitioner has published the family matter relating to the complainant with intention to malign his name, which squarely attracts the ingredients of the offences under Section 499 of IPC and Section 500 of IPC.
In support of his submission, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in Shatrughna Prasad Sinha .vs. Rajbhau Surajmal Rathi and Others (1996) 6 SCC 263.
5. I have considered the submissions and perused the records.
6. Both the Courts below have held that the impugned publication is defamatory in nature and falls within the ambit of Section 499 of IPC. A reading of the publication indicates that a news item was published with regard to the proceedings initiated against the complainant. The contents of the said publication appear to be reproduction of the charges framed against the complainant in the said proceedings. Here it may be relevant to refer to the charges framed against the respondents which read as under:-
“That you the accused No.1 being the Medical Director of Athena Hospital and you accused No.2 being a practicing doctor and you accused No.3 being the custodian of the records of Athena Hospital, Falnir, Mangalore on 12-2-2007 hatched a conspiracy and concocted false story of the complainant assaulting Mrs.Radhika’s son viz., Kirthi and accused No.1 prepared false medical documents falsely showing that Kirthi was admitted and treated as in patient in Athena Hospital on 12-2-2007 under his care and thereby you have committed criminal conspiracy and committed an offence punishable u/s 120B r/w 34 of IPC and within my cognizance.
That on the above said date, time and place you the accused No.1 to 3 have forged and fabricated medical records so as to justify that the person by name Kirthi was examined and treated in their hospital, with intent to cause damage to the complainant and thereby you have committed the offence punishable u/s 465 r/w 34 of IPC and within my cognizance.
That on the above said date, time and place you the accused No.1 to 3 have forged and fabricated medical records so as to justify that the person by name Kirthi was examined and treated in their hospital, intending that the same shall harm the reputation of the complainant and thereby you have committed the offence punishable u/s 469 r/w 34 of IPC and within my cognizance.
7. In this background if the offending publication is perused, it goes to show that the accusations made against the petitioner in a judicial proceedings are published therein. It is stated that ‘A Mangalore-based hospital has been caught by the long arm of the law seven years after it allegedly created false records to implicate a retired Coast Guard officer in a domestic violence case’. This preamble of the article refers to the judicial proceedings. Further, the contents of the publication read thus:
‘Mohan is a resident of Marathahalli, Bangalore East. A charge memo issued by the judicial magistrate first class II, Mangalore, on July 14 said the hospital managing director RS Shettian, and doctors BK Shivaprasad Rai and Dr. Shwetha Rao, hatched a conspiracy and concocted a false story against Mohan on February 12, 2007. The JMFC has framed charges against the trio. The hospital allegedly falsified records to show that Kirthi had been admitted with injuries and given treatment. The trio then tried to implicate Mohan in a domestic violence case, accusing him of assaulting his son. They sent the medico-legal file to Mangalore East police’.
8. The above extract, on the face of it goes to show that a report of the criminal trial was published by accused Nos.2 and 3. The contents of the said publication are based on Court records. A wholesome reading of the publication clearly indicates that it was a fair report of the judicial proceedings. The fourth exception appended to Section 499 of IPC provides that, ‘It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.’ Since the publication is substantially a report of the charges framed against the respondents, in my view, such publication does not satisfy the essential requirements of Section 499 IPC entailing prosecution. The said publication is protected by the “Fourth Exception” appended to Section 499 of IPC. That apart, there is nothing in the entire complaint or in the publication to suggest that the publication was made by the petitioner. If for any reason, accused Nos.2 and 3 found it necessary to interview the petitioner and during the interview the petitioner has discussed the aspect of the judicial proceedings initiated by him against the complainant the same do not furnish a cause of action for the complainant to proceed against the petitioner. In the absence of any specific material to show that the impugned publication has been made by the petitioner and that it was based on judicial proceedings initiated against respondent No.2, in my view, the prosecution of the petitioner for the alleged publication is illegal, untenable and cannot be sustained.
9. The decision relied on by learned counsel for the respondent reiterates the general principles of law. It is held in the said decision, that the Court in exercise of the powers under Section 482 cannot appreciate and analyse the evidence and the same is not the province of the Court. The said decision does not consider the scope of “Fourth Exception” to Section 499 of the Code. On the other hand, this Court in T. Satish U. Pai .vs. Narayan Nagappa Nayak [2002 CRI.L.J. 4416] considering identical fact situation in Para 8 has observed as under:-
“8. In the instant case, based on the contents of the FIR news item has been published whether or not the allegations made is true or false need not concern the journalist while publishing the same. Since the public authorities have taken cognizance of the complaint filed by Subbaiah against the respondent, they have initiated necessary legal action and any of the proceedings relating to the crime that occurred in society if report is published in the newspaper, it would not amount to defamation and squarely falls within the fourth exception of Section 499, IPC.”
10. Another decision of the Madras High Court relied on by the learned counsel relates to privileged communication. The said principle is not applicable to the facts of this case.
11. In the light of the above discussions, the petition deserves to be allowed and accordingly, the petition is allowed.
The impugned order dated 1.4.2015 passed by the JMFC, Mangaluru in P.C.No.42/2015 taking cognizance of the offences punishable under Section 500 of Cr.P.C. and the order dated 1.3.2016 passed by the I Additional District and Sessions Judge, Dakshina Kannada, Mysuru, in Crl.R.P.No.148/2015 confirming the order dated 01.04.2015 are quashed.
Sd/- JUDGE *alb/-.