This article is written by Khushi Sharma pursuing B.A. LLB from IIMT, IP University (Trainee Associate, Blog iPleaders). This article deals with the analysis of a leading case on Defamation.
The present case of Dhirendra Nath Sen v. Rajat Kanti is a case of defamation. The case hereby deals with the quashing of proceedings under Section 500 of the Indian Penal Code, 1860 pursuing before Sri K.K. Roy, Magistrate, First Class, Cooch Behar, West Bengal. The said case has the equivalent citation of AIR 1970 Cal 216, 1970 CriLJ 662 and was decided on 29th August 1969.
Defamation is considered as an act of defaming or injuring others reputations by publishing or announcing the defamed statement to a third party. The statement published or announced might be untrue and unjust, and may publicly harm the injured party. The foremost essential of defamation is that the defamatory statement must be said in such a way that it injures the pride of the said person in front of others or publicly. Law for defamation allows a person to sue any other person for causing injury or damage to their reputation. Defamation may be a civil (tort) or a criminal charge and can be instituted under Section 499 and 500 IPC.
Facts of the case
Herein (Occurrence of the event), the Complainant Rajat Kanti Bhadra filed a case under Section 500 of the IPC against the two accused i.e., Sookomal Kanti Ghosh, the editor of the Bengali Daily “Jugantar” and Dhirendra Nath Sen who is the printer and the publisher of the same. The paper published the impugned statement on 7th December 1965 and was served by P.T.I and U.N.I with the sub-heading Shoulmari Sadhu expressed that “The Foreign Minister states that the Sadhu of Shoulmari who calls himself Subhas Chandra Bose, is not Netaji and the Government has not the least doubt about this fact that he is not” (translated to English). The said publication was widely circulated in West Bengal including Cooch Behar thus involving the above jurisdiction of the Court. Furious to which, the Complainant instituted the case under Section 500 of the IPC as he described himself as a member of the Shoulmari Ashram.
The learned Magistrate after receiving the complaint sent the same for a judicial enquiry to be reported to Sri I. Sundas, Magistrate, 1st Class, Cooch Behar. After the examination of the complaint and the four witnesses, it was observed that cognizance of the offence under Section 500 cannot be taken by the court as the said complaint does not fall under the provisions of Section 198 of the Code of Criminal Procedure, 1973. Further, the court stated that the Complainant is not the person aggrieved under the meaning of this section and so dismissed the complaint under Section 203 of CrPC, 1973 which states that after examining the complaint if the Magistrate is of the opinion that the complaint does not form sufficient grounds to be instituted then the complaint can be dismissed on grounds of insufficiency.
After the dismissal of the complaint, the Complainant further raised a revisional application under Section 436 of the CrPC to the learned Sessions Judge for setting aside the dismissal of the complaint and holding a fresh enquiry for the matter. The said revision application, approved by Sri H.N. Sen, Sessions Judge, Cooch Behar, was sent then for judicial enquiry by Sri G. C. Chatterjee, Magistrate, 2nd Class, Cooch Behar. Four witnesses were then examined and finally, the report was submitted on 26th June 1967 expressing that there was a prima facie case against the accused persons under Section 500 of the IPC. The accused were then finally summoned by the court.
- Whether the present case is maintainable in law and on merits?
- Whether the case falls under the provisions of Section 500 of the IPC?
Contention of the parties
Submissions of the Defendant (by Advocate Mr. Ajit Kumar Dutt) (Accused – Petitioners)
The counsel for Defendant presented a three-fold submission to the court which was as follows –
- The first submission of the Counsel was on law rooting the initiation of the case, that the cognizance taken by the Hon’ble Court has not been proper and without jurisdiction, as the present case is in non-conformance with the provisions of Section 198 of CrPC as the Complainant does not come under the “persons aggrieved” in the scope of the Section. Furthermore, the Counsel contended that the statement was meant for the Sadhu of Shoulmari only.
- The second submission by the Counsel expresses that if we, for once consider that the impugned publication includes the defamation of Ashram as well thus touching the Complainant, the Complaint still would not be considered under Section 500 of the IPC as Ashram is an indeterminate body.
- The third submission of the Counsel includes facts i.e. merits that the statements published are not defamatory and the said proceedings are also not maintainable due to the absence of the two news agencies who served the news items. Without the presence of the two other co-accused the case instituted does not stand maintainable.
Submission of the petitioner (by Advocate Arun Kumar Jana)
The Counsel for the Complainant contended the following submissions –
- The first submission of the Counsel on behalf of the Complainant that the “Court lacks the jurisdiction and no cognizance lies under Section 198 CrPC” are the facts that need to be determined in the proceedings and the quashing of the same is premature. Referring to the first submission by the opposite counsel, the Counsel on behalf of the Complainant expressed that there is no conformance to Section 198 because the alleged defamation is against the head of the institution hence it touches all the members of the Ashram and his disciples. The impugned publication has lowered the esteem of the Ashram which involves their head and disciples hence involving the Complainant under “some persons aggrieved” and thus making the case with conformance of Section 198 CrPC, 1973.
- The Counsel highlighted that the second contention of the opposite Counsel terms Ashram as an indeterminate body. The impugned publication defames the head of the institution viz. His Holiness Srimat Saradanandiee thereby touched his disciples including the Complainant too.
- The Counsel also highlighted that whether the statement was derogatory enough to be considered into Defamation is premature and cannot be said without a full-fledged trial.
After hearing the contentions of both the parties, the Court raised specific points from the arguments of both the Counsels. The Court was of the view that as the Counsel of the accused-petitioners mentioned that the impugned publication has in no way particularly highlighted and injured the Complainant and does not come under the ambit of “some aggrieved persons” stands correct as a person cannot put the law in motion only after feeling injured by a statement which is made in a generalised manner. This portrays a clear non-conformance to Section 198 of CrPC, 1973 to which the proceeding should have been vitiated and quashed at an early stage. Further, the court also highlighted the averments made by the counsel of the accused-petitioners that the Ashram is an indeterminate body. Supporting to which the Court expressed that Ashram being an unincorporated body or an association of individuals, the Complainants as its member cannot bring any cause of action under the law.
The Court points out the averment of the Counsel for the Complainant mentioned that the Counsel expressed that the defamation complained, in this case, is to the head of the institution and not to an indeterminate body thus touching all the members of the Ashram as well and thus making the complaint a part of “some persons aggrieved”. The Court giving informative insights clashing the above-mentioned submission cited that in reference with the Halsbury’s Laws of England (3rd Edn.: Edited by Viscount Simonds) vol. 24, page 5, paragraph 6 “A class of persons cannot be defamed as a class, nor can an individual be defamed by general reference to the class to which he belongs”. The same view was taken by Gatley on “Libel and Slander” (4th Edn.) on page 115 expressing that while discussing defamation about a class no particular cause of action can be maintained by individual members of the class. It was held in the case of Eastwood v. Holmes, (1858) 1 F & F 347 held that the defamed statement must ascertain to a specific person to put the law in motion and to raise a cause of action; references of the same are made in a bunch of case laws. The next case law pointed out that to make a defamed statement put into motion it should be made to a particular person and to prove this there shall be two stages; first that he must satisfy the court that the person has personally been injured by the statements directly made to him. If the statement appears to be more generalised then the case under defamation can not be instituted. (Braddock v. Bevins,1948 1 K. B. 580 ).
The court expressed support on the case law mentioned by the Counsel for the Accused-Petitioner. In the case of Hosseinbhoy Ismailji v. Emperor, (1935) 36 Cri LJ 408 (Sind), the person who personally suffered from the defamation can put the law into motion. Where, therefore, the editor of the paper writes a highly derogatory statement against an institution, a person who is just a member of that institution cannot come under “aggrieved persons”, under Section 198 of CrPC. Another observation by the court with this case law is if a statement is defamatory to a person or any head of the institution, it is only for him to institute a case and put the law to motion for defamation.
The court while pointing out the contentions mentioned by the Counsel for the Complainant explained that the submission made for Section 198 is untenable and as it seems to attain the same with a very wide meaning which is much above the intention of the legislature. There has been no proper cognizance to take the offence triable under Section 198 of the CrPC. The Court exclaims that the second contention of the Counsel for the accused-petitioners has a strong footing as the defamatory statement made relates to the head of the institution and not the Complainant himself. The Complainant in any sense has not highlighted his personal injury by the impugned publication in the petition of the Complainant. Further, the Court agreed with the contention of the Counsel about the Ashram being an indeterminate body.
The Court by analysing the situation inferred that the concept of defamation is as old as hills in the Indian Penal Code, 1860. Upon the ultimate analysis, it was held that whether the impugned publication is defamatory is not a question of fact and must abide by a full-fledged trial.
The Court by supporting the contention of the Counsel of the Accused-petitioner declared to quash the criminal proceedings under Section 500 of the IPC, 1860. By explaining it in detail the court held that until and unless the defamatory statement is not made to a particular person, a case under Section 500 will not be instituted nor will it attract the provisions of Section 198 of the CrPC. Cause of action for defamation can only be attracted if the person proves that the derogatory statement is made specifically for him/her. Defamatory statements published or announced for a class of persons or an association of the person will not be treated as personal defamation.
By concluding the article we can observe that the question of whether a particular statement is considered as defamation or not will be decided after a full-fledged trial and not prematurely but the institution of the case for defamation is based on whether the party is personally targeted or not. If the party is personally targeted then the person will have to prove to the magistrate about the presence of the defamation and if not personally targeted then the case would not be instituted. So, comment to an association of persons or an incorporated body cannot put the law into motion under defamation.
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