B.S.Shanmukhappa v. The State of Karnataka & Ors.

( By Shri. K.A.Chandrashekar, Advocate for Respondent No.2 Shri. P. Karunakara, High Court Government Pleader for Respondent No.1) ***** This Criminal Revision Petition is filed under Section 397 read with 401 Code of Criminal Procedure, 1973, by the advocate for the petitioner praying to set aside the judgment of conviction and sentence dated 30.10.2006 passed by the Civil Judge (Jr.Dn.) and Judicial Magistrate First Class, Harihar in C.C.No.917/1994 and its confirmation by the judgment dated 27.12.2008 passed by the Additional Sessions Judge, Fast Track Court-II, Davanagere in Criminal Appeal No.128/2006 and acquit the petitioner of the charges. This Criminal Revision Petition is coming on for Hearing, this day the court made the following: O R D E R Heard the learned counsel for the petitioner and the learned counsel for respondent No.2.

2. The petitioner was Accused No.5 in a case instituted at the instance of the second respondent herein. It transpires that on

13.12.1994, Respondent No.2 had lodged a complaint under Section 3 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’ for brevity) PCR.No.42/1994 before the Judicial Magistrate First Class, Harihara, against six persons including these petitioners for offences punishable under Sections 499, 500, 501 and 502 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC' for brevity), on the allegation that a defamatory article was published against him in the ‘Janavani’ Kannada newspaper dated

19.07.1994 printed and published at Chitradurga. The Magistrate on taking cognizance of the offence under Section 500 IPC, even though the complainant was absent on that day and on the subsequent dates of hearing, his sworn statement was recorded on 20.03.1995 and thereafter a list of witnesses was also filed. It is claimed that Accused No.1 was the editor, Accused No.2 was the publisher, Accused No.3 was the printer and proprietor of the printing press, Accused No.4 was the Reporter of the Davanagere Branch, Accused No.5 was the sub-editor and Reporter at Chitradurga of the ‘Janavahini’ Kannada daily newspaper. Accused No.6 was also 4 a Journalist. It was alleged by the complainant that he was a Practicing Advocate at Davanagere and Chitradurga and at other courts and that in the defamatory article published as above, allegations were made against the complainant which brought down his reputation in the eye of the general public and therefore, was before the Court. The accused including the present petitioner had pleaded not guilty and claimed to have been tried. It is thereafter on the evidence tendered before the Trial Court and on the rival contentions, the court below had framed the following points for consideration: “1. Whether the complainant proves that the accused No.2, as a publisher, accused Nos.4 and 5 as a reporters of the daily news paper of Janavahini have defamed the complainant by publishing an imputation in a daily news paper Janavahini dated 19-07-1994 an imputation concerning to the complainant as per Ex.P1(a) and as per Ex.P1(b) and as per Ex.P1(c) intending to defame the reputation of the complainant thereby 5 committed an offence punishable under Section 500 of IPC?

2. What order?” The Trial Court answered the same in the affirmative and sentenced the accused 2, 4 and 5 to undergo simple imprisonment for two years and to pay a fine of Rs.10,000/- each, for the offence punishable under Section 500 IPC. The same was challenged by the present petitioner as well as others in three connected appeals which were heard and disposed of by a common judgment. The Appellate Court has affirmed the judgment of the Trial Court on a finding that in related proceedings in several civil suits, there were judgments against the accused, whereby the suit for damages was decreed against them and in parallel criminal proceedings, the accused having been convicted and the same having been affirmed in appeals, has also been affirmed in Revision petitions before this Court only with a modification of the sentence of imprisonment and accordingly, has dismissed the appeals. It is that which is under challenge in the present petition. 6

3. The learned counsel for the petitioner would submit that apart from the complaint whereby there is an allegation that the present petitioner was a sub-editor and a reporter, without there being any proof of the said fact, it has been affirmed that the petitioner was guilty of having committed the offence as alleged, along with the other accused. On the other hand, the only incriminating evidence said to be found against the petitioner was an affidavit filed by Accused No.3 before the Appellate Court, whereby it was declared by the said accused that the present petitioner, along with other accused, was instrumental as a sub-editor and reporter in having published the article. On the basis of the said affidavit, the complaint against Accused No.3 was dismissed as withdrawn and it is that material which is also relied upon by the Appellate Court in arriving at a finding that the present petitioner was also a sub-editor and a reporter who was instrumental along with other accused Nos.1, 3 and 4 in 7 publishing the article. The learned counsel would submit that the procedure in having accepted and marked the evidence of the Accused No.3 in the appellate stage, is itself highly irregular. Further, it was for the complainant to have established that the petitioner was indeed a reporter, apart from being a sub-editor and that he was instrumental in deciding the matter that was to be published and had indeed acted as a reporter. It is contended that there is no proof on record to show that the petitioner was instrumental in taking a decision as to the matter that was to be published when on the face of it, accused No.1 was shown as the editor for all purposes, who was instrumental in deciding the content of the publication and since there was no other evidence to indicate that the petitioner was one of the reporters, there was no basis for the court to have held that the petitioner was indeed the reporter who was instrumental in bringing out the article. Hence, the learned counsel would point out that the entire case against the petitioner would have to go as there is no material available on record to independently establish that the petitioner was the reporter who was 8 instrumental in publishing the article. The learned counsel would submit that if in the event the complainant chose to withdraw the complainant chose to withdraw the complaint against Accused No.3 on the basis of the affidavit that was filed at the appellate stage, it was for the complainant to have examined Accused No.3 as a witness to establish the statement attributed to him. The mere say of one of the co-accused against the petitioner could not have been accepted by the court below nor to be relied upon to establish the fact that the petitioner was indeed a reporter.

4. The counsel for the respondent No.2 would contend that as observed by the courts below, Accused No.4 was also a reporter along with Accused No.3, the other petitioner. This fact has been asserted and accepted by the courts in several independent proceedings and it is that which has weighed in the mind of the courts below in holding that the fact of the petitioner being a reporter was evident, which has also been affirmed by this Court in the revision petitions. 9

5. As rightly pointed out by the learned counsel for the petitioner, the only basis appears to be the affidavit said to have been filed by Accused No.3 in holding that the present petitioner was a reporter. Further insofar as the revision Petitions 1005/2009 and connected petitions which were disposed of by an order of this Court on 16.08.2010, is concerned, the present petitioner was not one of the petitioners therein and any concession made or other admission by the other co-accused, would not bind the present petitioner and the sentence that has been modified at the instance of those petitioners could not be applied to the petitioner in the face of the above glaring circumstance. Therefore, the petitioner has certainly made out a case for allowing the present petition as it was evident that the Appellate Court could not have accepted the affidavit of Accused No.3 and on the basis of the same, could not have declared that the present petitioner was also a reporter who was instrumental in having published the defamatory article. 10 Accordingly, the petition is allowed. The judgments of the Appellate Court as well as the Trial Court are set-aside insofar as the present petitioner is concerned. Sd/- JUDGE KS