John
Thomas Vs. Dr. K. Jagadeesan [2001] Insc 319 (12 July 2001)
K.T.Thomas,
R.P.Sethi Thomas, J.
Special Leave Petition (crl.) 1875 of 2001
Leave
granted.
A
renowned hospital in the Metropolis of Madras (Chennai) has been caricatured in
a newspaper as the abattoir of human kidneys for trafficking purposes. When the
Director of the Hospital complained of defamation, the publisher of the
newspaper sought shelter under the umbrage that the libel is not against the
Director personally, but against the hospital only and hence he cannot feel
aggrieved. The accused/publisher, who raised the objection before the trial
court, on being summoned by the court to appear before it, succeeded in
stalling the progress of the trial by clinging to the said contention which the
trial magistrate has upheld. But the High Court of Madras disapproved the
action of the magistrate and directed the trial to proceed. Hence the accused
has come up to this Court by filing the special leave petition. But after
hearing the learned senior counsel, who argued for the appellant, we did not
find the necessity to wait for the respondent - complainant to reply to those
arguments as the appeal is only liable to be dismissed in limine.
The
complainant (respondent in this) stated that he is running a hospital as its
Director under the name "K.J. Hospital". He claimed to be the
Honorary Overseer Adviser of Royal College of Physicians and Surgeons of
Glasgow in UK. His grievance in the complaint is
that a news item was published by the "Madras Times" on 21.3.1991
containing highly defamatory imputations against his hospital. The said
newspaper is a daily published and circulated by the appellant as its editor.
The passage which, according to the complainant, is defamatory to him has been
quoted in the complaint. It is extracted below:
"It
is stated that the hospital used to stealthily deprive of its patients of one
of their kidneys when they were admitted for minor operations. Women who were
admitted for caesarian operation had one of their kidneys removed without their
knowledge.
More
than 120 women have so far been affected by this trading in kidneys. It is
reported that the kidneys were later exported to Malaysia. The hospital has engaged brokers to the lure in the needy
poor to part with one of their kidneys for a hefty sum. The nefarious activity
has been going on for many months now." So the complaint was filed by the
respondent before the Court of Metropolitan Magistrate for the offence under
Section 500 of the IPC. The magistrate, who took cognizance of the offence,
issued process to the appellant.
It
seems, the appellant is interested in taking up his defence and contentions
only in a piecemeal manner. At the first instance, he approached the High Court
for quashing the complaint on the ground that the magistrate ought to have
examined all the witnesses for the complainant before issuing the process to
the accused. The High Court dismissed his petition and repelled his contention
on that score as per an order passed in Crl.O.P. No.2189/93.
Thereafter
the appellant moved the trial court for discharging him from the proceedings
for which he raised two other contentions. The first among them is that the
publication did not amount to defamation, second among them is that "K.J. Hospital"
is a private limited company whereas the complainant is a private individual
who had no locus standi to file the complaint.
On the
first contention, the trial magistrate found that the imputations are
"derogatory remarks about the hospital". The learned magistrate upheld
the second contention for which he made the following observations:
"Even
though the respondent himself admits in his complaint that Dr. K. Jagadeesan is
the Director of K.J. Hospital, mere admission by the complainant cannot give
him the status of Director of the hospital without the Article of Association
duly registered in the Company Law Board under Indian Companies Act. Therefore,
onus is on the respondent to prove that he is the Director of K.J. Hospital,
and he has the locus standi to file this complaint. The respondent has not
discharged the onus that he is the Director of K.J. Hospital and so he has
failed to prove that he has locus standi in filing the complaint against the
petitioner." The trial magistrate, on the above reasoning, discharged the
appellant as per its order dated 10.2.1995.
The
complainant filed a revision before the High Court of Madras challenging the
aforesaid order of discharge. A single Judge of the High Court reversed the
order and restored the criminal proceedings to reach its logical culmination in
accordance with law. It is the said order of the High Court which the
appellant/accused is challenging now. The learned single Judge noticed that the
trial court has already recorded evidence of two witnesses for the prosecution.
He did not consider the points found against by the trial court, instead he
observed that the trial court in a summons case cannot discharge the accused
after passing over to the stage of evidence. According to the learned single
Judge, the accused should have filed the application for discharge immediately
after he entered appearance and if he has not done so he could not do it after
the court has moved to the stage of evidence taking.
What
the learned single Judge has stated on that aspect reads as follows:
"If
such an application is filed before the court immediately after entering
appearance before commencement of the trial as envisaged in Chapter XX Cr.P.C.
the petition is maintainable. But now, the stage has passed and the evidence of
two witnesses on the side of prosecution was recorded and at this stage in the
absence of any provision for discharge of the accused the magistrate ought not
to have discharged the accused and he should have allowed the trial to flow in
accordance with the established procedure." The appellant questioned the
aforesaid view of the learned single Judge on the strength of Section 258 of
the Code of Criminal Procedure (for short 'the Code'). It must be pointed out
that the offence under Section 500 of the IPC is triable as a summons case in
accordance with the provisions contained in Chapter XX of the Code. Sections
251 to 257 of that Chapter deal with the steps to be adopted from the
commencement upto culmination of the proceedings in summons cases. One of the
normal rules in summons cases is that once trial started, it should reach its
normal culmination. But Section 258 is included in that chapter in the form of
an exception to the aforesaid normal progress chart of the trial in summons
cases. It is useful to extract the section here:
"258.
Power to stop proceedings in certain cases.- In any summons case instituted
otherwise than upon complaint, a Magistrate of the first class or, with the
previous sanction of the Chief Judicial Magistrate, any other Judicial
Magistrate, may, for reasons to be recorded by him, stop the proceedings at any
stage without pronouncing any judgment and where such stoppage of proceedings
is made after the evidence of the principal witness has been recorded,
pronounce a judgment of acquittal, and in any other case, release the accused,
and such release shall have the effect of discharge." Summons cases are
generally of two categories. Those instituted upon complaints and those
instituted otherwise than upon complaints. The latter category would include cases
based on police reports. Section 258 of the Code is intended to cover those
cases belonging to one category alone i.e. "summons cases instituted
otherwise than upon complaints". The segment separated at the last part of
the section by the words "and in any other case" is only a sub-
category or division consisting of "summons cases instituted otherwise
than upon complaints". That sub- category is not intended to cover all
summons cases other than those instituted on police report. In fact, Section
258 vivisects only "summons cases instituted otherwise than on
complaints" into two divisions. One division consists of cases in which no
evidence of material witness was recorded. The section permits the court to
acquit the accused prematurely only in those summons cases instituted otherwise
than on complaints wherein the evidence of material witnesses was recorded. But
the power of court to discharge an accused at midway stage is restricted to
those cases instituted otherwise than on complaints wherein no material witness
was examined at all.
The
upshot of the above is that Section 258 of the Code has no application to cases
instituted upon complaints. The present is a case which was instituted on
complaint. Hence the endeavour made by the accused to find help from Section
258 of the Code is of no avail.
Shri
Siva Subramaniam, learned senior counsel for the appellant, contended that the
imputations contained in the publication complained of are not per se
defamatory. After reading the imputations we have no doubt that they are prima
facie libellous. The only effect of an imputation being per se defamatory is
that it would relieve the complainant of the burden to establish that the
publication of such imputations has lowered him in the estimation of the right
thinking members of the public. However, even if the imputation is not per se
defamatory, that by itself would not go to the advantage of the publisher, for,
the complaining person can establish on evidence that the publication has in
fact amounted to defamation even in spite of the apparent deficiency. So the
appellant cannot contend, at this stage, that he is entitled to discharge on
the ground that the imputations in the extracted publication were not per se
defamatory.
The
contention focussed by the learned senior counsel is that the respondent, who
filed the complaint, has no locus standi to complain because he is only a
Director of K.J. Hospital about which the publication was made and that the
publication did not contain any libel against the complainant personally. It is
not disputed that the complainant is the Director of K.J. Hospital. Explanation
2 in Section 499 of the IPC reads thus:
"Explanation
2.- It may amount to defamation to make an imputation concerning a company or
an association or collection of persons as such." In view of the said
Explanation, it cannot be disputed that a publication containing defamatory
imputations as against a company would escape from the purview of the offence
of defamation. If the defamation pertains to an association of persons or a
body corporate, who could be the complainant? This can be answered by reference
to Section 199 of the Code. The first sub-section of that section alone is
relevant, in this context. It reads thus:
"199.
Prosecution for defamation.- (1) No court shall take cognizance of an offence
under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint
made by some person aggrieved by the offence." The collocation of the
words "by some persons aggrieved" definitely indicates that the
complainant need not necessarily be the defamed person himself. Whether the
complainant has reason to feel hurt on account of the publication is a matter
to be determined by the court depending upon the facts of each case. If a
company is described as engaging itself in nefarious activities its impact
would certainly fall on every Director of the company and hence he can
legitimately feel the pinch of it.
Similarly,
if a firm is described in a publication as carrying on offensive trade, every
working partner of the firm can reasonably be expected to feel aggrieved by it.
If K.J. Hospital is a
private limited company, it is too farfetched to rule out any one of its
Directors, feeling aggrieved on account of pejoratives hurled at the company.
Hence
the appellant cannot justifiably contend that the Director of the K.J. Hospital would
not fall within the wide purview of "some person aggrieved" as
envisaged in Section 199(1) of the Code.
The
learned senior counsel made a last attempt to save the appellant from prosecution
on the strength of the decision of this Court in K.M. Mathew vs. State of Kerala
{1992 (1) SCC 217}. In that case prosecution against Chief Editor was quashed
for want of necessary averments in the complaint regarding his role in the
publication. That part of the decision rests entirely on the facts of that case
and it cannot be imported to this case. It is pertinent to point out, in this
context, that the appellant did not have any such point either when he first
moved the High Court for quashing the proceedings or when he moved the trial
court for discharge. Hence it is too late in the day for raising any such
point, even apart from non-availability of that defence to the appellant on
merits.
We,
therefore, dismiss this appeal.
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