O.P. Bhatt v. The State of Andhra Pradesh

Order

The point that arises for determination in this criminal petition which is filed under Section 482 of the Code of Criminal Procedure (Cr.P.C) is whether or not the proceedings against the petitioner herein in criminal case i.e. C.C.No.708 of 2008 on the file of the Court of the II Additional Chief Metropolitan Magistrate, Hyderabad (for short CMM) should be quashed.

2. The point arises in the following circumstances. The petitioner O.P. Bhatt herein is arrayed as the fourth accused in the aforesaid criminal case. The second respondent P.Laxminarasaiah herein filed the aforesaid case as a private complaint against four accused alleging offences relating to defamation punishable under Section 499, 500, 501 and 502 of the

Indian Penal Code (IPC). The first accused who is said to be a former Chairman of the State Bank of India (SBI) in the said case is said to have authored a book with the title “My 40 years with SBI” and published it and the said book is said to have been printed and published by A2 and A3. The allegations in the complaint are the said book contains defamatory material or matter against the second respondent and it was on that basis the second respondent filed the aforesaid private complaint. The petitioner herein as already mentioned supra is arrayed as the fourth accused in the said case.

3. In the paper book filed by the petitioner a copy of the order dated 19.06.2008 by which the learned CMM is said to have taken cognizance of the aforesaid criminal complaint is filed. It shows that he took cognizance of the said complaint against A1 under Section 500 IPC (defamation), against second and third accused under Section 501 IPC (printing defamatory matter). So far as the petitioner herein i.e. fourth accused is concerned cognizance order shows that the CMM took cognizance of the case against him under Section 502 IPC (selling or offering for sale any printed or engraved substance containing defamatory matter). There is no dispute about the cognizance order. It is not necessary for the purpose of this petition to go into the allegations made against A1 to A3 in the case regarding the alleged offences.

4. The relevant averments/allegations in the complaint relating to the alleged complicity of the petitioner are stated in para-5(t) of the complaint. Before they are mentioned, it must be noted here that in the complaint it is stated that one Dr.C.Rangarajan the then Chairman of the Economic Advisory Council to the Prime Minister, New Delhi wrote a Foreword dated 30th May 2006 to the book authored by the first accused and this foreword was published or printed in the 2006 Edition of the aforesaid book and a copy of that book is enclosed along with this file and there is no dispute on this aspect also. It is the version of the second respondent/complainant that when he issued a notice to Dr.C.Rangarajan about his grievance regarding the alleged defamatory material against him contained in the said book the latter also wrote a letter dated 15.06.2007 informing him that he has withdrawn the Foreword. The other details regarding this foreword are not necessary.

5. Now turning to the allegations against this petitioner made in the complaint are concerned, it is stated that though he knew that the aforesaid Dr.C.Rangarajan has withdrawn his foreword, he being a close follower of the first accused and being the present Chairman of the SBI has purchased and circulated throughout the country thousands of copies of the book authored by the first accused and printed by the second and third accused and circulated them throughout the country and also kept several copies of the said book in the local head office of the SBI and therefore he is also, it is alleged, guilty of the offences of defamation. These are the allegations made against the petitioner in the complaint.

6. The plea of the petitioner is that he is not aware of any defamatory material said to have been written in the book authored by the first accused and that on a request made by the first accused who was the earlier Chairman of the SBI, the Deputy Managing Director (CDO) by his proceedings dated 06.11.2006 placed an order for purchase of 6000 books much earlier to the letter dated 16.05.2000 of Dr.C.Rangarajan withdrawing his foreword to the book. His plea is that he never misused his position or never intended to defame the second respondent and therefore the allegations made against him do not, looked at from any angle, show any offence against him and he has been unnecessarily dragged into the case and therefore the proceedings against him should be quashed. He also mentioned that the purchase of books falls under an official act and this aspect will be mentioned a little later.

7. Sri C.Padmanabha Reddy the learned Senior Counsel arguing for the petitioner pointed out that looked at from any angle having regard to the averments in the complaint the petitioner merely stands in the position of a purchaser even assuming for a moment that he has placed the order and that Sections 499 to 502 do not provide any punishment or do not create any offence of defamation in respect of a purchaser of a book containing defamatory material or even a reader and therefore the complaint against the petitioner is baseless and the learned CMM was not correct in taking cognizance of the case against the petitioner. He also drew my attention to the aforesaid cognizance order dated

19.06.2008 of the learned CMM and pointed out that the learned CMM took cognizance of the case against the petitioner under Section 502 IPC which deals with selling of defamatory matter which is not applicable to the petitioner. He also argued that even assuming for a moment that the cognizance order of the learned CMM is not treated as conclusive regarding the offences still the allegations made against the petitioner do not disclose any offence at all relating to defamation as mere purchase of books does not constitute any offence and consequently the proceedings against the petitioner should be quashed.

8. On the other hand Sri Srinivas the learned counsel appearing for the second respondent/complainant firstly pointed to the “Preface” and the “Acknowledgements” which were given and made by the author in his book in question and argued that the said acknowledgements would show that the first accused who has authored the said book has expressed his gratitude to the petitioner also among others and that he shared their knowledge and experiences in writing the book. This very mention of the petitioner’s name in the acknowledgements would show that the petitioner was aware of the defamatory material against the second respondent and therefore he must be held to have intentionally purchased and circulated the book only to indulge in defamation of the petitioner.

9. Secondly he argued that in para-5 of the pleadings in the criminal petition he tried to defend his action in purchasing the books as an official act done by him in discharge of his official duties as the Chairman of the SBI and therefore he cannot be made personally liable for the charge of defamation and having regard to this plea the petitioner must be put on trial along with others and his guilt or innocence can be decided in the trial. Lastly he argued that this Court can interfere under Section 482 of the Cr.P.C only if the allegations even if believed do not disclose any offence and that in this case the allegations made against the petitioner do disclose an offence and therefore this is not a fit case for interference under Section 482 of Cr.P.C. With the above pleas he requested for dismissal of this petition. Sri C.Padmanabha Reddy in his turn argued that none of the above contentions raised on behalf of the second respondent merit any acceptance and advanced his arguments to show as to how they cannot be accepted. I shall refer to them in the course of this order. In the light of the above rival contentions the point is now taken up.

10. It is now well settled that this Court acting under Section 482 of Cr.P.C can interfere and quash the proceedings in a criminal case only when the pleaded prosecution case in it even if only believed to be true does not disclose any offence against the person who approaches this Court seeking such interference. It is not necessary to state the authorities which lay down this proposition. The dispute is only with regard to how far this proposition is applicable to this case and whether it is applicable or not. To decide this aspect, the definition of the offence of ‘defamation’ should be looked into and it is defined in Section 499 of the IPC. According to the said provision, the ‘defamation’ consists of by words either spoken or intended to be read or by signs or by visible representations making or publishing 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. It is not necessary to look at the explanations and also the exceptions as it is not the case of the petitioner that his case would fall under any of the exceptions.

11. It may then be noted that Section 500 IPC speaks of punishment for defamation and Section 501 IPC speaks of punishment for printing or engraving matter known to be defamatory of any person. Section 502 IPC deals with sale of or offering for sale of printed or engraved substance containing defamatory matter knowing that it contains such matter.

12. Now a perusal of the complaint would show that the allegations against this petitioner are that as the present Chairman of the SBI he has purchased several books of the first accused and circulated them throughout the country and kept some of the books in the library of the SBI in its head office at Hyderabad. The allegations against him are already set out supra in detail. Thus the acts attributed to the petitioner in the complaint are that being the Chairman of the SBI he purchased several books of the first accused containing allegedly matter which is defamatory of the second respondent and keeping them in the library of the SBI at Hyderabad or at other places.

13. It may now be noted that Sections 500 to 502 IPC do not say that mere purchase of books containing defamatory matter is an offence and it can also be said here that a reader is also not made punishable under the said provisions. Thus I am of the opinion that as the allegations made against the petitioner/A4 are only in respect of mere purchase of books of the first accused it can be said that by itself does not constitute any offence under Sections 499 to 502 IPC. There is no allegation also in the complaint that the petitioner has at any time or at any place spoken to about or announced about the defamatory matter allegedly contained against the second respondent in the book of the first accused. In other words it follows that the allegations in the complaint which only speak of mere purchase of books of the first accused which are attributed against the petitioner even if believed to be true do not disclose any offence and it can be said that this is a plus point for petitioner.

14. I shall now take up the contentions raised on behalf of the second respondent/complainant. The first contention as already mentioned supra is that in the preface to the book and also the acknowledgements mentioned in the book by the first accused the latter has made a reference to the petitioner. The contention is that in the acknowledgments especially the first accused has stated that the petitioner and others who are his former colleagues shared their knowledge and experience with him (A1) and that they went through the drafts of the book also.

15. It is common knowledge that when a person authors a book it is usually customary for him to express his acknowledgments and thanks to those who have helped him in authoring the book and preparing his final draft or text before the book is sent for printing. It is true that in the acknowledgments the author has not only mentioned about the petitioner’s name describing him as his Executive Secretary when he was the Chairman of the SBI but he also referred to Sri G.D.Kamat, a retired High Court Judge and also four others namely Sarvasri Divakar J Kanvinde, Dr K M Bhattacharya, P K Kakodkar and S V Naik. It is stated that all of them shared their knowledge and experiences with him (A1) and helped him in writing the book. Basing on acknowledgements the learned counsel for the second respondent/ complainant says that the petitioner also must be held to have gone through the entire book and also the alleged defamatory material contained in it as against the second respondent and consequently approved the same and therefore his inclusion as an accused in the criminal case cannot be said to be without any basis. This contention is far fetched. If this contention is to be accepted then not only the petitioner but also the four other persons whose names are found in the acknowledgements must also be added as the accused but the second respondent did not choose to include them.

16. As already mentioned supra it is usual and customary for any author to express his thanks or acknowledgements to those who have assisted him in authoring the book but that does not mean and cannot also be understood to mean that all of them have gone through the book and approved what the author has ultimately written in it. Nothing is brought on record in the complaint by the second respondent to show that the petitioner herein went through the alleged defamatory material in the book and gave his approval for inclusion of the same in the book. It therefore follows that the argument of Sri C.Padmanabha Reddy advanced on the above lines to repel this contention of the second respondent’s counsel based on the preface and acknowledgments given in the book should be upheld and the contention of the second respondent’s counsel in this behalf should be rejected. It must also be pointed out here that a perusal of the preface of the book would show that the name of the petitioner is not found in it and this is only mentioned for the purpose of record.

17. Then coming to the second contention of Sri Srinivas that since in this petition the petitioner has tried to defend the purchase of the books by him as an official act the proceedings against him should be allowed to be continued and the matter should be allowed to be finally decided by the CMM after trial. There is no force in this contention also. It is not made clear by Sri Srinivas as to how the mention of purchase of books as an official act would disclose an offence of defamation against him. The explanation of the petitioner in his pleas in the petition is that since the former Chairman has requested for purchase of the books the CEO has purchased them by placing an order dated 06-11-2006 and this was much earlier to the letter dated 15-06-2007 of Dr.C. Rangarajan by which the latter withdrew his foreword to the book in question. Thus the purchase was made by the petitioner prior to the controversy in question. It may also be noted here that in any institution the present head of the institution may purchase books written by a former head of the institution at the latter’s request and this is not unusual and just because of that it cannot be inferred without allegations that the petitioner bought the books only to circulate the defamatory material against the second respondent allegedly contained in the book. The petitioner in his anxiety may have described it as an official act but whether it is an official act or not when the mere purchase of books does not constitute an offence of defamation, the fact that the purchase is described as an official act cannot be made the basis to fasten the liability on the petitioner. Accordingly this contention of Sri Srinivas is also rejected.

18. Then the third contention raised by Sri Srinivas is that the allegations in the complaint do disclose an offence and therefore the petitioner must be allowed to be put on trial. There is no force in this contention also. In fact it may be noted that this is the principle which governs the exercise of power by the High Court under Section 482 of Cr.P.C i.e. that it can interfere in the said provision only when the allegations even if believed to be true do not disclose an offence and not when it is the other way. In the present case it has already been seen supra that the allegations that are made against this petitioner are merely based on the purchase of the books in question by him. The mere purchase of books containing defamatory material does not constitute an offence either under Section 500 or 501 or 502 of IPC. Nothing is alleged in the complaint that the petitioner has indulged in any publication of the alleged defamatory material and the only allegation is that he purchased the said books. To repeat, this does not constitute an offence under Section 500 to 502 of IPC and these allegations in my opinion do not disclose any offence against the petitioner. Hence the case of petitioner for quashing the proceedings against him should be accepted.

19. Accordingly for the aforesaid reasons the point is decided in favour of the petitioner and this Criminal Petition is allowed and the proceedings against the petitioner in C.C.No.708 of 2008 on the file of the Court of the II Additional Chief Metropolitan Magistrate, Hyderabad are quashed.

20. Parting with the matter, it is however made clear that if in the course of trial evidence is forthcoming against this petitioner or others showing that they have committed the offences alleged against the second respondent along with A1 to A3, it shall be open for the learned CMM to proceed against them in exercise of his power under Section 319 Cr.P.C. and this order shall not be understood to preclude the learned CMM in any manner from exercising that power. 25th March, 2011 CVRK ______________________ N.RAVI SHANKAR, J.