Bijit Kumar Basu Vs Dilip Kumar Sinha and Others

Arun Kumar Bhattacharya, J.@mdashThe hearing stems from an application u/s 482 read with Sections 397/401 Cr. PC filed by the petitioner praying for setting aside the order dated 14.11.2000 passed by the learned Metropolitan Magistrate, 12th Court, Calcutta and quashing the proceeding being Case No. C-153/99 against accused No. 4 Ananda Bazar Patrika.

2. The circumstances leading to the above application are that O. P. No. 1 filed a complaint being registered as C-153/99 under Sections 500/ 501/502 IPC against pro-O.P. Nos. 2 & 3 and the present petitioner who are Executive Editor & Reporter, Editor, and Printer & Publisher respectively of Ananda Bazar Patrika as also Ananda Bazar Patrika figuring as accused No. 4. As pro-O.P. Nos. 1 & 2 and the present petitioner are responsible for the day to day affairs of the business and publication of the Ananda Bazar Patrika, and Ananda Bazar Patrika is only a brand name of a newspaper which is not a legal entity and is incapable of committing an offence of defamation, and Ananda Bazar Patrika Ltd. is not a juristic person, the petitioner filed a petition praying for recalling/ withdrawal of summons issued to accused No. 4 which was rejected by the impugned order.

3. Being aggrieved by the said order, the petitioner has preferred the present application.

4. All that now requires to be considered is whether the learned Court below was justified in passing the above order.

5. As none appeared for O.P. No. 1, the matter was heard ex-parte.

6. Before I open the discussion and indeed as paving the way for it, I feel it pertinent to point out that the rule of giving reasons is a basic principle of natural justice and it should be observed in its proper spirit, and mere pretence of compliance with it would not satisfy the requirement of law. "The object of the insistence upon the recording of reasons is to eliminate arbitrariness. Reasons, if given, substitute objectivity for subjectivity. It is common experience that when reasons are set down in writing greater thought goes into it and greater objectivity is attained", as was observed in the case of Rajamallaiah and Another Vs. Anil Kishore and Others, . In the case on hand, virtually no reason for the above decision appears to have been recorded.

7. Nevertheless, Mr. Subrata Basu, learned Counsel for the petitioner, referring the case of Ashok Kumar Jain v. State of Maharashtra advanced argument contending that since accused No. 4 Ananda Bazar Patrika is the brand name of a newspaper which has no legal entity and even if the case would have been instituted against the company i.e. Ananda Bazar Patrika Ltd. which is not a juristic person, it cannot lie, as a natural person is capable of committing the offence and as such the impugned order should be set aside and the prosecution is liable to be quashed against accused No. 4 Ananda Bazar Patrika.

8. The sole question involved in the present case is whether newspaper or (considering that accused No. 4 has inadvertently been described as Ananda Bazar Patrika instead of Ananda Bazar Patrika Ltd.) a company can be prosecuted u/s 500 or 501 or 502 IPC.

9. Section 500 IPC provides the penalty for the simple and plain act of defamation, while Section 501 prescribes the punishment which may be imposed upon a person who prints or engraves any matter knowing or having good reason to believe that such matter is defamatory of any person. Those who disseminate defamatory matter in print are punishable u/s 502. The definition of defamation, given in Section 499 goes to show that if a person publishes any imputation concerning another person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of other person he would except in cases covered by the exceptions, be guilty of defaming the other person. The offence of defamation consists of three essential ingredients viz. (1) making or publishing any imputation concerning any person, (2) such imputation must have been made by words, either spoken or intended to be read or by signs or by visible representation and (3) the said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned. Therefore, the intention to cause harm is the most essential sine qua non of an offence u/s 500 IPC, as was held by this Court in Sunilakhya Chowdhury Vs. H.M. Jadwet and Another, . In this connection, the case of Anath Bandhu Vs. Corporation of Calcutta, may be referred to where it was held that if there is anything in the definition or context of a particular Section in the statute which will prevent the application of the section to a limited company certainly a limited company cannot be proceeded against. There are heaps of sections in which it will be physically impossible by a limited company to commit the offence. Then again, a limited company cannot generally be tried when mens rea is essential. Again, it cannot be tried where the punishment for the offence is imprisonment because it is not possible to send a limited company to prison by way of sentence. Section 7 of the Press and Registration of Books Act, 1867 provides as follows : "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 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 persons 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 newspaper of which a copy is produced)." In case of alleged defamatory news item in newspaper, presumption as to awareness of contents of newspaper can be raised only against the Printer or the Publisher who made a declaration u/s 7 of the said Act or against as editor whose name appears on the copy of newspaper. In this connection, the case of State of Maharashtra Vs. Dr. R.B. Chowdhary and Others, may be relied on.

10. Accordingly, accused No. 4 being the brand name of a newspaper or the company, even if it was figured as an accused cannot/could not be subjected to prosecution for the alleged offence.

11. As such, the impugned order being not sustainable be set aside and the proceeding against accused No. 4 Ananda Bazar Patrika be quashed.

12. Let a copy of this order be sent down at once to the learned Court below.