TaxTMI 
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2025 (2) TMI 1263
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....urt"] 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 Mi....
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....ditorial 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 mus....
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....k 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 miscarr....
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.... (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 Others [(1998) 5 SCC 749]. (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 de....
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....39;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 i....
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.... 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 amo....
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....ided 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 acc....
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....ficer 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 oth....
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....ing 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 empha....
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....eir 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 20.07.2014 Times of India 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 ....
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....tor 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, incident....
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....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 tarnishe....
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....able 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 w....
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....se, 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 su....