1 Cr.M.P. No.

152 of 2020

IN THE HIGH COURT OF JHARKHAND, RANCHI

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Cr.M.P. No. 152 of 2020
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Rahul Gandhi, aged about 49 years, s/o late Rajiv Gandhi, r/o 12, Tuglak
Lane, P.O. and P.S. –Parliament Street, District- New Delhi (Delhi)
….. Petitioner
-- Versus --
1.The State of Jharkhand
2.Pradip Modi, s/o late Prabhu Dayal Modi, R/o Flat No.601, Amaltash,
Modi Compound, Behind Arya Hotel, P.O. and P.S.-Lalpur Town,
District-Ranchi ...... Opposite Parties
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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Kaushik Sarkhel, Advocate
For the State :- Mr. Saket Kumar, Advocate
For the O.P.No.2 :- Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Sarvendra Kumar, Advocate
----

12/05.07.2022 Heard Mr. Kaushik Sarkhel, the learned counsel appearing

on behalf of the petitioner, Mr. Anil Kumar Sinha, the learned Senior

counsel appearing on behalf of the O.P.No.2 and Mr. Saket Kumar, the

learned counsel appearing for the respondent State.

This petition has been filed for quashing the entire criminal

proceeding including the order taking cognizance dated 07.06.2019

passed in connection with Complaint Case No.1993 of 2019 whereby

cognizance under section 500 of the I.P.C has been taken and pending in

the court of learned Judicial Magistrate, 1st Class, Ranchi.

The complaint case was filed by the O.P.No.2 alleging

therein that:

“The complainant is a practicing advocate in

Hon’ble Jharkhand High Court and belongs to illustrious Modi
family of Ranchi;
That the great grandfather of the complainant
Seth Bhimraj Modi migrated to the town of Ranchi from
Mandawa in Rajasthan in the year 1868 and established a
business empire in the field of textile, banking, money
lending etc. His younger brother, Bhuramal Modi also joined
him in Ranchi and they established firm “Bhimraj Bhuramal”.
Today in Ranchi there are more than 80 families of both
 2 Cr.M.P. No. 152 of 2020

brothers besides in other parts of India and abroad. Others

families belonging to different branches of Modi clan
migrated to Ranchi more than 100 years ago from Rajasthan.
There is sizeable population of persons having Modi surname
in Ranchi;
That late Bansidhar Modi, grandfather of the
complainant carried forward the business established by his
father with help of his younger brothers namely Nagarmal,
Shiv Narain and Panna Lal Modi and took it to greater height.
Modi family has very high and impeccable reputation and
integrity in the society. They also run a number of charitable
institutions in the city of Ranchi since several decades;
That the accused Rahul Gandhi is the National
President of Indian National Congress Party having its office
at 24, Akbar Road, New Delhi. He is also a member of Lok
Sabha;
That during freedom movement in early
1920s, Nagarmal Modi and Shivnarain Modi were active
member of Congress party and leaders like Mahatma Gandhi,
Jawaharlal Nehru, Rajendra Prasad and others were
honoured guests in Modi House. Shivnarain Modi permitted
the congress party to build its Ranchi office at
Shharadhanand Road on the land belonging to him which is
known as Congress Bhawan from where Congress party
function in Ranchi;
That the accused being President of Indian
National Congress is involved in electioneering for 2019
Parliament Election to be held during months of April and
May, 2019;
That on Saturday 02.03.2019, Rahul Gandhi
was speaker in Parivartan Ulgulan Rally organized by his
party. During his address in the rally accused uttered
following words:
**vc pkj lky ls vPNs fnu vk;sx
a s dk ukjk cny dj pkSdhnkj
pksj gks x;kA ,d pkSdhnkj us lkjs pkSdhnkjkssa dh cnuke dj
fn;k] vc pkSdhnkj Hkh ukjk cnyus dks dg jgs gSA eSa Li"V dj
nsrk gw¡ fd ns”k dk pkSdhnkj pksj gSA vkius uhjo eksnh] yfyr
eksnh ds ckjs esa lquk gSA uhjo eksnh dks ujsUnz HkkbZ dgrs gSaA
vkf[kj lkjs eksnh pksj D;ksa gSaA**
 3 Cr.M.P. No. 152 of 2020

That the above speech of Rahul Gandhi in

Ranchi rally is available in you-tube.com http://you
tu.be/SH46YBy3ohY. The total duration of speech is 26.41
minutes and the offensive partition quoted above is from
16.16 minutes to 17.15 minutes;
That all local news paper of Ranchi published
the offensive portion of speech of Rahul Gandhi in their
morning edition on 03.03.2019. Prabhat Khabar published
offensive portion in box in front page deleting word ‘Chor’
and instead printed ..... in its place Another prominent paper
Hindustan highlighted offensive portion on front page in box
in its 03.03.2019 edition;
That the complainant started receiving phone
calls from his family members since evening of 02.03.2019
when the utterance of the accused became viral. The
complainant in order to satisfy himself minutely heard the
entire speech on you tube and also read offensive portion of
speech in newspaper on 03.03.2019 where the accused said
**vkf[kj lkjs eksnh pksj D;ksa gSA**
That the complainant and other members of
Modi clan felt insulted, defamed and humiliated by such
derogatory and defamatory remarks of the accused for entire
Modi clan of the country;
That the complainant is a practicing advocate,
hence member of his family and Modi clan wished that he
should take up the cause of Modi clan who felt hurt and
anguished by such utterances by the accused in public
meeting at Ranchi especially when our fore fathers were
active congress workers during freedom movement and had
donated land to congress party to build its office on
Shhradhanand Road;
That the complainant sent a legal notice to
the accused on 05.03.2019 under speed post calling upon
him to express regret by issuing a press statement,
else face criminal and civil proceeding claiming damages of
Rs.20 crores;
That the copy of notice was also off loaded in
the web-site of congress party. Since no response was
received the complainant re-sent the notice on 25.03.2019
 4 Cr.M.P. No. 152 of 2020

by speed post. But till date no response received from the

accused;
That the accused is in habit of making such
reckless and false statements in his public meeting, television
interviews, press conference etc. The accused instead of
expressing regret added salt to injury when he uttered more
derogatory remarks against persons having Modi
surname/title in public rally held in the town or Kolar in
Karnatka on 13.04.2019 where he uttered as under:
“I have a question? Why do all thieves have Modi in
their names, whether it is Nirav Modi, Lalit Modi, or
Narendra Modi? I don’t know how many more such
Modi will come out.”
That the entire speech of Rahul Gandhi at
Kolar Rally on 13.04.2019 is also available in You tube
htt://Youtu.be/voqMuW40Gs and speech is of duration of
31.02 minutes and offensive portion is between 12.58
minutes to 13.25 minutes. The complainant has heard it
which confirms the above utterance. Times of India,
Bangalore edition carried report of Kolar Rally in its
14.04.2019 edition highlighting the offensive utterances;
That repeated imputations by the accused in
rally after rally against persons having Modi surname/title
that all Modi are thieves is derogatory and defamatory and
has lowered the reputation of Modi clan in public eyes and
has caused immense hurt and anguish to person having Modi
surname;
That the speech of the accused in Ranchi and
Kolar rally making sweeping remarks that all Modis are
thieves is defamation as defined under section 499 I.P.C for
which accused Rahul Gandhi is liable to be punished by
imposing maximum imprisonment and exemplary fine;
That complaint is being filed bonafide and in
interest of justice”
Mr. Sarkhel, the learned counsel appearing on behalf of the

petitioner took the Court to the various paragraphs of the complaint and

submits that in terms of Explanation-2 of section 499 of I.P.C that only a

person who has been aggrieved can maintain a complaint under

Explanation-2 of section 499 I.P.C. He further submits that ingredients of

 5 Cr.M.P. No. 152 of 2020

section 499 read with Explanation-2 of the I.P.C. is not made out so far

the petitioner is concerned. By way of advancing his argument, he

submits that a mandatory provision of section 202 Cr.P.C has not been

reflected in the impugned order. To buttress his such argument, he relied

in the case of “Abhijit Pawar v. Hemant Madhukar Nimbalkar and

Another” reported in (2017) 3 SCC 528. Paragraph nos.21, 22 and 23 of

the said judgment are quoted hereinbelow:

“21. We have considered the respective submissions of the

counsel for the parties. In these proceedings, we are not concerned
with the issue as to whether impugned publications make out a case
for offence under the aforesaid provisions of IPC? Since the learned
Magistrate has issued the process qua four editors as well, apart
from A-1 and A-2, we proceed with the assumption that prima facie
case is made out against the said editors. The question is as to
whether the learned Magistrate adopted correct procedure while
issuing notice to A-1 and A-2 as well.
22. Basic facts which need to be recapitulated for deciding this
issue are that A-1 is the Managing Director of Sakal newspapers
whereas A-2 is the Chairman of the Company. Further, insofar as
declaration under Section 7 of the Press Act is concerned, name of
the other accused persons are mentioned except these two accused
persons. Therefore, we have to examine the matter keeping in view
non-existence of such a presumption against these two accused
persons. It is also an admitted fact that both the accused persons are
not residents of Kolhapur and are outside his jurisdiction. Having
regard to these facts, we proceed to examine the matter in the light
of the provisions of Section 202 CrPC as well as Section 7 of the Press
Act.
23. Admitted position in law is that in those cases where the
accused is residing at a place beyond the area in which the
Magistrate exercises his jurisdiction, it is mandatory on the part of
the Magistrate to conduct an enquiry or investigation before issuing
the process. Section 202 CrPC was amended in the year 2005 by the
Code of Criminal Procedure (Amendment) Act, 2005, with effect
from 22-6-2006 by adding the words “and shall, in a case where the
accused is residing at a place beyond the area in which he exercises
his jurisdiction”. There is a vital purpose or objective behind this
amendment, namely, to ward off false complaints against such
persons residing at a far-off places in order to save them from
unnecessary harassment. Thus, the amended provision casts an
obligation on the Magistrate to conduct enquiry or direct
investigation before issuing the process, so that false complaints are
filtered and rejected. The aforesaid purpose is specifically mentioned
in the note appended to the Bill proposing the said amendment.”
 6 Cr.M.P. No. 152 of 2020

Relying on this judgment, he submits that the Hon’ble

Supreme Court considering section 202 Cr.P.C has interfered and quashed

the proceeding. On the point of Explanation-2 of section 499 of the I.P.C,

he relied in the case of “G. Narasimhan, G. Kasturi and K. Gopalan v. T.V.

Chokkappa and Analogous cases” reported in (1972) 2 SCC 680.

Paragraph nos.10, 11, 12, 15 and 16 of the said judgment are quoted

hereinbelow:

“10. The Magistrate, on the basis of the complaint and the

evidence he recorded, decided to issue process and to proceed
with the trial. The appellants in all these appeals thereupon
approached the High Court under Section 561-A of the Code of
Criminal Procedure for quashing the said proceedings. The
appellants’ main contention before the High Court was that the
respondent was not an aggrieved party within the meaning of
Section 198 of the Code, that he had filed the complaint in his
capacity as the chairman of the reception committee of the
conference and not in his individual capacity, that in the
absence of any reference to him in the said news item he had no
cause for complaint, and that the conference being an
undefined and an amorphous body, the respondent as a
member or part of such a body could not lodge the complaint.
11. A learned Single Judge of the High Court, who heard the
said applications, rejected the said contention in the following
words:
“The Dravida Kazhagam is an identifiable group. The
complainant is a member of this Kazhagam. He was the
Chairman of the Reception Committee in the conference. He is
active member of the Dravida Kazhagam. He was one of those
who piloted and sponsored the resolution. Certainly he is a
person aggrieved within the meaning of Section 198 of the
Criminal Procedure Code. The complaint by him is competent.”
12. The statement in this para that the respondent piloted
and sponsored the resolution in question was factually incorrect,
as the respondent’s evidence itself showed that the resolution
was moved not by him, but by the President of the conference,
who read it out and as no one opposed, it was taken to have
been approved by all. The only thing which the respondent
claimed to have done as the chairman of the reception
committee was to give shape to the draft resolution by
abridging it. The respondent may have been interested in the
resolution and its being passed, but the resolution certainly was
neither moved nor piloted by him. Indeed, if any one could be
said to have piloted it, it was the President of the conference.
Furthermore, the resolution was of the conference and the only
contribution of the respondent to it was his having given shape
to the original draft.”
15. Prima facie, therefore, if Section 198 of the Code were to
be noticed by itself, the complaint in the present case would be
unsustainable, since the news item in question did not mention
the respondent nor did it contain any defamatory imputation
 7 Cr.M.P. No. 152 of 2020

against him individually. Section 499 of the Penal Code, which

defines defamation, lays down that whoever by words, either
spoken or intended to be read or by signs etc. makes or
publishes any imputation concerning any person, intending to
harm or knowing or having reason to believe that the
imputation will harm the reputation of such person, is said to
defame that person. This part of the section makes defamation
in respect of an individual an offence. But Explanation (2) to the
section lays down the rule that it may amount to defamation to
make an imputation concerning a company or an association or
collection of persons as such. A defamatory imputation against
a collection of persons thus falls within the definition of
defamation. The language of the Explanation is wide, and
therefore, besides a company or an association, any collection
of persons would be covered by it. But such a collection of
persons must be an identifiable body so that it is possible to say
with definiteness that a group of particular persons, as
distinguished from the rest of the community, was defamed.
Therefore, in a case where Explanation (2) is resorted to, the
identity of the company or the association or the collection of
persons must be established so as to be relatable to the
defamatory words or imputations. Where a writing in weighs
against mankind in general, or against a particular order of
men, e.g., men of gown, it is no libel. It must descend to
particulars and individuals to make it a libel. In England also,
criminal proceedings would lie in the case of libel against a class
provided such a class is not indefinite e.g. men of science, but a
definite one, such as, the clergy of the diocese of Durham, the
justices of the peace for the county of Middlesex. [see Kenny’s
Outlines of Criminal Law (19th Edn.) 235]. If a well-defined class
is defamed, every particular of that class can file a complaint
even if the defamatory imputation in question does not mention
him by name.
16. In this connection, counsel for the appellants leaned
heavily on Knupffer v. London Express Newspaper Ltd.2 The
passage printed and published by the respondents and which
was the basis of the action there read as follows:
“The quislings on whom Hitler flatters himself he can build a
pro-German movement within the Soviet Union are an emigre
group called Mlado Russ or Young Russia. They are a minute
body professing a pure Fascist ideology who have long sought a
suitable Fuehrer — I know with what success.”
The appellant, a Russian resident in London, brought the
action alleging that the aforesaid words had been falsely and
maliciously printed and published of him by the respondents.
The evidence was that the Young Russia party had a total
membership of 2000, that the headquarters of the party were
first in Paris but in 1940 were shifted to America. The evidence,
however, showed that the appellant had joined the party in
1928, that in 1935 he acted as the representative of the party
and as the head of the branch in England, which had 24
members. The appellant had examined witnesses, all of whom
had said that when they read the said article their minds went
up to the appellant. The House of Lords rejected the action, Lord
Simon saying that it was an essential element of the cause of
action in a libel action that the words complained of should be
published of the plaintiff, that where he was not named, the test
 8 Cr.M.P. No. 152 of 2020

would be whether the words would reasonably lead people

acquainted with him to the conclusion that he was the person
referred to. The question whether they did so in fact would not
arise if they could not in law be regarded as capable of referring
to him, and that that was not so as the imputations were in
respect of the party which was in Paris and America. Lord Porter
agreed with the dismissal of the action but based his decision on
the ground that the body defamed had a membership of 2000,
which was considerable, a fact vital in considering whether the
words in question referred in fact to the appellant. The principle
laid down there was that there can be no civil action for libel if it
relates to a class of persons who are too numerous and
unascertainable to join as plaintiffs. A single one of them could
maintain such an action only if the words complained of were
published “of the plaintiff”, that is to say, if the words were
capable of a conclusion that he was the person referred to. [See
Gatley on Libel and Slander (6th Edn.) 288] Mr Anthony,
however, was right in submitting that the test whether the
members of a class defamed are numerous or not would not be
apt in a criminal prosecution where technically speaking it is not
by the persons injured but by the state that criminal proceedings
are carried on and a complaint can lie in a case of libel against a
class of persons provided always that such a class is not
indeterminate or indefinite but a definite one. [Kenny’s Outlines
of Criminal Law (19th Edn.) p. 235]. It is true that where there is
an express statutory provision, as in Section 499, Explanation
(2), the rules of the Common Law of England cannot be applied.
But there is no difference in principle between the rule laid
down in Explanation (2) to Section 499 and the law applied in
such cases in England. When, therefore, Explanation (2) to
Section 499 talks of a collection of persons as capable of being
defamed, such collection of persons must mean a definite and a
determinate body.

By way of relying on this judgment, he submits that the

petitioner is not an aggrieved person in terms of section 199 of Cr.P.C. He

submits that defamatory imputation against a collection of persons will

fall only if the person is identifiable. He submits that since whether the

word are derogatory of act are directed at any individual or a readily

identifiable group of people and if that will apply, then only a petition can

be maintained. He further relied in the case of “Sahib Singh Mehra v.

State of U.P” reported in AIR 1965 SC 1451 and relied on paragraph

nos.7 and 9 which are quoted hereinbelow:

“7.Before dealing with the contentions raised for the

appellant, we may refer to the provisions of law which enable a
Public Prosecutor to Me a complaint for an offence under S. 500
I.P.C. committed against a public servant. Section 198 Cr. P.C.
provides inter alia that no Court shall take cognizance of an
offence falling under Chapter XXI (which contains ss. 499 and
 9 Cr.M.P. No. 152 of 2020

500 I.P.C.) except upon complaint made by some person

aggrieved by such offence. Section 198B, however, is an
exception to the provisions of S. 198 and provides that
notwithstanding anything contained in the Code, when any
offence falling under Chapter XXI of the Indian Penal Code other
than the offence of defamation by spoken words is alleged to
have been committed against any public servant, employed in
connection with the affairs of a State, in respect of his conduct
in the discharge of his public functions, a Court of Session may
take cognizance of such offence without the accused being
committed to it for trial, upon a complaint in writing made by
the Public Prosecutor. It is thus that a Public Prosecutor can file
a complaint in writing in the Court of Session directly with
respect to an offence under S. 500 I.P.C. committed against a
public servant in respect of his conduct in the discharge of his
public functions. Sub-s. (3) of S. 198B provides that no
complaint under sub-s. (1) shall be made by the Public
Prosecutor except with the previous sanction of the Government
concerned for the filing of a complaint under S. 500 I.P.C. The
sanction referred to above, in this case, and conveyed by the
Home Secretary to the Inspector-General of Police, was a
sanction for making a complaint under S. 500 I.P.C. against the
appellant with respect to the article under the heading 'Ulta
Chor Kotwal Ko Dante', in the issue of 'Kaliyug' dated September
12, 1960, containing defamatory remarks against the Assistant
Public Prosecutor, R. K. Sharma, of Aligarh, and other
prosecuting staff of the Government in respect of their conduct
in the discharge of public functions. The sanction was therefore
with respect to defamation of two persons (i) R. K. Sharma,
Assistant Public prosecutor, Aligarh; and (ii) the other police
prosecuting staff of Government of Uttar Pradesh, which would
be the entire prosecuting staff in the State. There was thus
nothing wrong in the form of the sanction.
9.The next question to determine is whether it is essential
for the purpose of an offence under S. 500 I.P.C. that the person
defamed must be an individual and that the prosecuting staff at
Aligarh or of the State of Uttar Pradesh could not be said to be
a 'person' which could be defamed. Section 499 I.P.C. defines
'defamation' and provides inter alia that whoever 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 cases covered by the exceptions to the Section, to,
defame that person. Explanation 2 provides that it may amount
to defamation to make an imputation concerning a company or
an association or collection of persons as such. It is clear
therefore that there could be defamation of an individual
person and also of a collection of persons as such. The
contention for the appellant then reduces itself to the question
whether the prosecuting staff at Aligarh can be considered to
be such a collection of persons as is contemplated by
Explanation 2. The language of Explanation 2 is general and any
collection of persons would be covered by it. of course, that
collection of persons must be identifiable in the sense that one
could, with certainty, say that this group of particular people
has been defamed, as distinguished from the rest of the
community. The prosecuting staff of Aligarh or, as a matter of
fact, the prosecuting staff in the State of Uttar Pradesh, is
 10 Cr.M.P. No. 152 of 2020

certainly such an identifiable group or collection of persons.

There is nothing indefinite about it. This group consists of all
members of the prosecuting staff in the service of the
Government of Uttar Pradesh. Within this general group of
Public Prosecutors of U.P. there is again an identifiable group of
prosecuting staff, consisting of Public Prosecutors and Assistant
Public Prosecutors, at Aligarh. This group of persons would be
covered by Explanation 2 and could therefore be the subject of
defamation.”

By way of relying on this judgment, he submits that

Explanation-2 provides that it may amount to defamation to make an

imputation concerning a company or an association or collection of

persons as such, if the person is identifiable. He further relied in the case

of “Balasaheb Keshav Thackeray v. State of Maharashtra & Ors.” reported

in MANU/MH/0730/2002 and relied on paragraph nos.9 and 13 of the

said judgment which are quoted hereinbelow:

“9. Respondent No. 2 claims a right to file a complaint for

the said defamation on the ground that he is a Congressman
and that the leaders of the Congress Party have been defamed.
Two questions are, therefore required to be considered and they
are; whether defamation of the said two leaders can be
considered as the defamation of the Congressmen? The second
question is whether on account of the alleged defamatory
statements, respondent No. 2 can be regarded as "some person
aggrieved" within the ambit of Section 199(1) of Criminal
Procedure Code? In other words, whether respondent No. 2 has
locus-standi to file a complaint for the alleged defamation of
the two leaders whom he respects? Section 199(1) deals with
prosecution for defamation and states:
"No court shall take cognizance of an offence
punishable under Chapter XXI of the Indian Penal
Code (45 of 1860), except upon a complaint made by
some person aggrieved by the offence.
Provided that where such person is under the age of
eighteen years, or is an idiot or a lunatic, or is from
sickness or infirmity unable to make a complaint, or is a
woman who, according to the local customs and manners,
ought not to be compelled to appear in public, some other
person may, with the leave of the Court, make a
complaint on his or her behalf."

13. This is, however not so when an association or collection of

persons is identified. In Sahib Singhv. State of U.P., an article
was published in a newspaper under the heading; "Ulta Chor
Kotwal ko Date", which means that; "a thief reprimands a police
officer". The said article was in connection with the public
 11 Cr.M.P. No. 152 of 2020

prosecutors and assistant public prosecutors of Aligarh. It was

held that within the general group of public prosecutors of U.P.
there is an identifiable group of prosecuting staff consisting of
public prosecutors and assistant public prosecutors at Aligarh
and that the said group of persons was covered by Explanation
IT to Section 499 and could therefore be subject of defamation.
In John Thomas v. Dr. K. Jagdishan, III(2001) CCR 52 (SC) a
renowned hospital inChennai was caricatured in a newspaper
as the abettor of human kidneys for trafficking purpose. The
Director of the hospital complained of defamation but the
publisher of the newspaper contended that the libel was not
against the Director personally but against the hospital only.
The trial court upheld the contention of the publisher but the
High Court did not approve the action of the Magistrate and
directed the trial to proceed. The Supreme Court confirmed the
decision of theHigh Court observing that it cannot be disputed
that a publication containing defamatory imputations as
against a company would escape from the purview of the
offence of defamation. It was further held that if a company is
described as engaging itself in nefarious activity its impact
would certainly fall on every director of the company and hence
he can legitimately feel the pinch of it. In the instant case, it
cannot be said that the Congressmen as a class is an identifiable
body. Therefore, even assuming that the alleged statements of
the petitioner are defamatory of the Congressmen, respondent
No. 2 is not entitled to file a complaint for the same. For the
aforesaid reasons, I feel that respondent No. 2 is not the person
aggrieved within the meaning of the term as given in Section
199(1) of Criminal Procedure Code. Secondly he is not entitled to
file a complaint for defamation against the petitioner for the
alleged defamation of Smt. Soniya Gandhi and Shri Sitaram
Kesari.

Lastly, he relied in the case of “Kalyan

Bandyopadhyay v. Mridul De” reported in

MANU/WB/0927/2015. Paragraph nos.8, 12 and 13 of the said

judgment are quoted hereinbelow:

8. In”Krishnaswami v. C.H. Kanaran” reported in LAWS (KER)-

1970-9-3 TLKER-1970-0-133, which was also in relation to a complaint
of defamation of the same political party, i.e., the Communist Party of
India (Marxist), the High Court of Kerala had held-
“If a well-defined class is defamed, each and every member of that
class can file a complaint. So, it follows that the defamatory words
must reflect or refer to some ascertained and ascertainable person
and that person must be the complainant. Where the words reflect on
each and every member of certain number of class, each and all can
sue. But, this principle depends upon the determination of the number
of persons of the class. A large body of men, the numerical strength of
 12 Cr.M.P. No. 152 of 2020

which is not known, nor could it be computed with any amount of

precision, it cannot be said that each and every member of that group
of persons constitution, such as a political party, each member of that
party can be said to be defamed if the political group, such as the
Marxist Communist Party is imputed with any libelous imputation.
On a review of the above decisions, it would be his difficulty, in the
circumstances of the present case, to say that the complainant Sri
C.H.Kanaran has been defamed on account of the present publication.
It is sure that pws. 2 to 4 have deposed that when they read the news
item they understood it that it referred to Sri C.H.Kanaran. That is
because pws. 2 to 4 knew the complainant as a member of the
Marxist Communist party and not because he was a person referred
to in Ext. P1(b). If an indefinite and indeterminate body as the Marxist
Community Party or Marxists or leftists as a collection of persons as
such are defamed, the fact that the collection of persons as such
being an indeterminate and indefinite collection of body, it could not
be said that each and every member of that body could maintain an
action under S.500 IPC., unless the complainant was referred to as a
person who had been defamed under the imputation. In the relevant
imputation, apart from the fact that the Secretary of the Marxists
community party had been defamed, the consequence of which will
be considered by me at a later stage, it could be said on the evidence
on record that there had been no defamation of the complainant as a
member of a large body of the Maxists or leftists belonging to the
Marxist Community Party, either of India as a whole, or much less of
the Kerala State. Therefore, Sri C.H.Kanaran is not competent to file a
complaint as a member of the Marxist Communist party on the basis
that the party or the Marxists had been defamed as he was not able
to point out that he was the person against whom the imputation was
levelled in Ext.P1 news item(Emphasis added).
On a consideration of the above decision, I am of the opinion that
would not be possible to say whether the imputation is alleged
against Sri C.K.Kanaran or Sri P. Sundarayya. When there was another
persons of the description of the person in the imputation, it would
not be possible to say who the person was referred in the news item
referred to above. The evidence showed that Sri P. Sundarayya was as
much involved as Sri Kanaran in the activities of the Marxists party in
Kerala. On a consideration of the evidence on record, I am of the
opinion that the case of the complainant would not improve even if
the proceeding is sent back to the trial court for continuation of the
trial. Assuming that the allegation in Ext. P1(b) is against the Marxists
or leftists of Kerala, even then I am of the opinion that the
complainant, Sri Kanaran cannot be pointed out as one among the
large body of Marxists or Leftists or Kerala to have been defamed on
account of the instant publication. It was not also possible for him to
sow conclusively that he was the person referred to as the General
Secretary, when it was conceded by all the witnesses in the case that
there was another person, who has satisfied the description of a
General Secretary of the Marxist Communist Party of India, who had
been defamed, it would not be worthwhile for remanding the case to
 13 Cr.M.P. No. 152 of 2020

the trial Magistrate to frame charge against the revision petitioner. I

find, therefore, that no case against the 1st respondent, printer and
publisher of the Indian Express was made out so as to frame charges
under S.500 and 501 IPC.”
12. As pointed above, the alleged defamatory statements do not
relate to the Congress party or Congressmen as a class but they
relates to two leaders of the said party. According to respondent no.2
the defamation of the said leaders is the defamation of all the
congressmen and that he being one of the Congressmen, is entitled to
file the complainant. Assuming for a moment that the alleged
statements attributed to the petitioner are defamatory of the
congressmen as a class, still in view of the following decisions, it
cannot be said that the complainant is entitled to file the complaint.
In M.P.Narayana Pillai v. M/P. Chacko, MANU/KE/0208/1986:1985
Cri.L.J.2002 the facts were that; an article consisting some derogatory
statements pertaining to the Syrian Christian community as a whole
was published. The statements were to the effect that the Syrian
Christian girls working abroad are engaged in prostitution for
livelihood. That Syrian Christian ladies are being sent to nunneries on
account of the financial incapacity of their parents to give them away
in marriage, and that Mother Theresa who is considered to be a living
Saint of Christian community is doing missionary work for publicity
alone. It was held that under section 499 explanation II imputations
against an association or collection of persons can be defamatory only
if such persons are definite and determinable body. Only if there is a
definite association or collection of persons capable of being
identified it could be said that the imputation against it affect all of
them and any member of the class can say that the imputation is
against him also personally so as to entitle him to file a complaint for
defamation. It was held that the Syrian Christian Community is an
unascertainable body of persons, and therefore, no member of that
body could say that he was individually defamed on account of
imputations. In the said case reference is made to the decision in
Krishnaswami v. C.H.Kanaran, 1971 Ker LT 145 wherein it was held
that the Marxist Community Party as a collection of persons as such
was an unascertainable body. Similarly in Rai Kapoor v. Narendra
Desai (1974) 15 Guj LR 125 there was imputation made against the
Bhangi community in general. It was held that the imputation would
not amount to defamation because they were not directed against the
particular group or members of that community which could be
identified. It was observed;
“There was no imputation against the complainant as an individual.
It he felt that as a member of the Bhangi community, he was
defamed, that would not entitle him to maintain a prosecution for
defamation unless the imputation was against him personally.”
13. Regarding the alleged defamation of the political party, this
Court, in relying on the citations referred above, it in respectful
agreement with the decision of the Kerala High Court that the
Communist Party of India (Marxist) is not a determinable, definite or
identifiable body or association of such nature that each and every
 14 Cr.M.P. No. 152 of 2020

member of the same stands to get individually defamed when an

insinuation is made against the party as a whole. The complainant
therefore cannot be held to be defamed individually, and
consequently is not an 'aggrieved person' in the given case. On this
count also therefore the complainant filed in the court of Ld. Chief
Metropolitan Magistrate would untenable.”

He further relied in the case of “S. Khushboo v. Kanniammal

& Anr.” reported in (2010) 5 SCC 600 and relied on the paragraph nos.34,

35, 38, 39 and 44 of the said judgment which are quoted hereinbelow:

“34. It is our considered view that there is no prima facie

case of defamation in the present case. This will become self-
evident if we draw attention to the key ingredients of the
offence contemplated by Section 499 IPC, which reads as
follows:
“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 amount to defamation to impute
anything to a deceased person, if the imputation would harm
the reputation of that person if living, and is intended to be
hurtful to the feelings of his family or other near relatives.
Explanation 2.—It may amount to defamation to make an
imputation concerning a company or an association or
collection of persons as such.
Explanation 3.—An imputation in the form of an alternative
or expressed ironically, may amount to defamation.
Explanation 4.—No imputation is said to harm a person’s
reputation, unless that imputation directly or indirectly, in the
estimation of others, lowers the moral or intellectual character
of that person, or lowers the character of that person in respect
of his caste or of his calling, or lowers the credit of that person,
or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as
disgraceful.”
(emphasis supplied)
The definition makes it amply clear that the accused must either
intend to harm the reputation of a particular person or
reasonably know that his/her conduct could cause such harm.
Explanation 2 to Section 499 further states that “It may amount
to defamation to make an imputation concerning a company or
an association or collection of persons as such.”
35. With regard to the complaints in question, there is
 15 Cr.M.P. No. 152 of 2020

neither any intent on the part of the appellant to cause harm to

the reputation of the complainants nor can we discern any
actual harm done to their reputation. In short, both the
elements i.e. mens rea and actus reus are missing. As
mentioned earlier, the appellant’s statement published in India
Today (in September 2005) is a rather general endorsement of
premarital sex and her remarks are not directed at any
individual or even at a “company or an association or collection
of persons”. It is difficult to fathom how the appellant’s views
can be construed as an attack on the reputation of anyone in
particular. Even if we refer to the remarks published in Dhina
Thanthi (dated 24-9-2005) which have been categorically denied
by the appellant, there is no direct attack on the reputation of
anyone in particular. Instead, the purported remarks are in the
nature of rhetorical questions wherein it was asked if people in
Tamil Nadu were not aware of the incidence of sex. Even if we
consider these remarks in their entirety, nowhere has it been
suggested that all women in Tamil Nadu have engaged in
premarital sex. That imputation can only be found in the
complaints that were filed by the various respondents. It is a
clear case of the complainants reading in too much into the
appellant’s remarks.
38. In M.S. Jayaraj v. Commr. of Excise this Court observed as
under:
“The ‘person aggrieved’ means a person who is wrongfully
deprived of his entitlement which he is legally entitled to receive
and it does not include any kind of disappointment or personal
inconvenience. ‘Person aggrieved’ means a person who is
injured or one who is adversely affected in a legal sense.”
39. We can also approvingly refer to an earlier decision of
this Court in G. Narasimhan v. T.V. Chokkappa. In that case a
controversy had arisen after The Hindu, a leading newspaper
had published a report about a resolution passed by Dravida
Kazhagham, a political party, in its conference held on 23-1-
1971 to 24-1-1971. Among other issues, the resolution also
included the following words:
“It should not be made an offence for a person’s wife to
desire another man.”
The Hindu, in its report, gave publicity to this resolution by using
the following words:
“The Conference passed a resolution requesting the
Government to take suitable steps to see that coveting another
man’s wife is not made an offence under the Penal Code, 1860.”
44. We are of the view that the institution of the numerous
criminal complaints against the appellant was done in a mala
fide manner. In order to prevent the abuse of the criminal law
machinery, we are therefore inclined to grant the relief sought
by the appellant. In such cases, the proper course for
Magistrates is to use their statutory powers to direct an
 16 Cr.M.P. No. 152 of 2020

investigation into the allegations before taking cognizance of

the offences alleged. It is not the task of the criminal law to
punish individuals merely for expressing unpopular views. The
threshold for placing reasonable restrictions on the “freedom of
speech and expression” is indeed a very high one and there
should be a presumption in favour of the accused in such cases.
It is only when the complainants produce materials that support
a prima facie case for a statutory offence that Magistrates can
proceed to take cognizance of the same. We must be mindful
that the initiation of a criminal trial is a process which carries an
implicit degree of coercion and it should not be triggered by
false and frivolous complaints, amounting to harassment and
humiliation to the accused.”

He puts reliance on this judgment and submits that as the

complainant is not having any specific legal injury as the petitioner’s

remarks were not directed at any individual or a readily identifiable group

of people as such complaint is not maintainable. By way of relying on this

judgment, Mr. Sarkhel, the learned counsel appearing on behalf of the

petitioner elaborated his argument by way of submitting that

Explanation-2 of section 499 I.P.C the words “It may amount to

defamation to make an imputation concerning a company or an

association or collection of persons” is required to be identified and in the

complaint the names of the persons disclosed cannot be said to be

aggrieved person and the complaint filed by the O.P.No.2 cannot be

maintained. On these grounds, he submits that if the ingredients are not

there, this Court sitting under section 482 Cr.P.C is empowered to quash

the entire criminal proceeding.

Mr. Anil Kumar Sinha, the learned Senior counsel appearing

on behalf of the O.P.No.2 took the Court to the solemn affirmation of the

O.P.No.2 and by way of relying on the solemn affirmation, he submits

that there are ingredients of section 499 I.P.C. He further submits that

the statement with regard to particular community having the title ‘Modi’

is made at Ranchi and the O.P.No.2 is a resident of Ranchi and he is an

aggrieved person. He refers to section 199 of the Cr.P.C and by way of

referring the said section, he submits that this section fairly says such
 17 Cr.M.P. No. 152 of 2020

person who is aggrieved can file a complaint. He further submits that

these are all facts which can be looked into by the trial court in the trial

and for coming to the conclusion that no case against the petitioner is

made out, this Court may not roam into to come to that conclusion. He

further submits that in identical situation with regard to statement

outraging the religious feeling of Marwari community was made which

was subject matter in the complaint before the court of Pune and Nasik

which travelled up to the Hon’ble Supreme Court and the Hon’ble

Supreme Court looking into the allegations about the Marwari community

held that these are the facts which can be proved in the trial. He submits

that was in the case of “Shatrughna Prasad Sinha v. Rajbhau Surajmal

Rathi & Ors.” reported in 1964(4) Crimes 27 (SC). Paragraph nos. 9 and

12 are quoted hereinbelow:

“9.The next question is: whether the learned Judge was

right in holding that the complaint discloses offence
punishable under Section 500 IPC? Section 499 defines
'defamation' thus:
"Whoever by words either spoken or intended to be read,
or by signs or by visible representations, makes or
publishes any imputation concerning any persons
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 excepted,
to defame that person".
Explanation 2 to the said section envisages that it may
amount to defamation to make an imputation concerning a
company or an association or collection of persons as such.
12. As regards the allegations made against the appellant in
the complaint filed in the Court of Judicial Magistrate, Ist
Class, at Nasik, on a reading of the complaint we do not
think that we will be justified at this state to quash that
complaint. It is not the province of this Court to appreciate at
this stage the evidence or scope of and meaning of the
statement. Certain allegations came to be made but whether
these allegations do constitute defamation of the Marwari
community as a business class and whether the appellant
had intention to cite as an instance of general feeling among
the community and whether the context in which the said
statement came to be made, as is sought to be argued by the
learned senior counsel for the appellant, are all matters to be
considered by the learned Magistrate at a later stage. At this
stage, we cannot embark upon weighing the evidence and
come to any conclusion to hold, whether or not the
allegations made in the complaint constitute anoffence
punishable under Section 500. It is the settled legal position
 18 Cr.M.P. No. 152 of 2020

that a Court has to read the complaint as a whole and find

out whether allegations disclosed constitute an offence
under Section 499 triable by the Magistrate. The Magistrate
prima facie came to the conclusion that the allegations
might come within the definition of 'defamation' under
Section 499 IPC and could be taken cognizance of. But these
are the facts to be established at the trial. The case set up by
the appellant are either defences open to be taken or other
steps of framing a charge at the trial at whatever stage
known to law. Prima facie we think that at this state it is not
a case warranting quashing of the complaint filed in the
Court of Judicial Magistrate, Ist Class at Nasik. To that
extent, the High Court was right in refusing to quash the
complaint under Section 500, IPC.

He further submits that so far the judgment relied by the

learned counsel appearing on behalf of the petitioner in “Abhijit Pawar v.

Hemant Madhukar Nimbalkar and Another”(supra) is concerned, there

was no enquiry made and only on the solemn affirmation cognizance has

been taken and that is why the Hon’ble Supreme Court has quashed the

proceeding. He submits that in the case in hand, it appears from the

solemn affirmation that one witness has been examined and thereafter

the learned court has taken cognizance. He submits that the order taking

cognizance is very elaborate and the entire facts which are hazy at this

stage can be proved in the trial. On the point of section 499 IPC, firstly

he relied in the case of “Subramanian Swamy v. Union of India, Ministry

of Law and Others” reported in (2016) 7 SCC 221 and relied on

paragraph nos.149, 175, 178, 197 and 198 of the said judgment which

are quoted hereinbelow:

“149. The analysis therein would show that tendency to

create public disorder is not evincible in the language employed
in Section 66-A. Section 66-A dealt with punishment for certain
obscene messages through communication service, etc. A new
offence had been created and the boundary of the forbidding
area was not clearly marked as has been held in Kedar Nath
Singh. The Court also opined that the expression used in Section
66-A having not been defined and further the provision having
not used the expression that definitions in IPC will apply to the
Information Technology Act, 2000, it was vague.
175. Explanation 2 deals with imputation concerning a
company or an association or collection of persons as such.
Explanation 3 says that an imputation in the form of an
 19 Cr.M.P. No. 152 of 2020

alternative or expressed ironically may amount to defamation.

Section 11 IPC defines “person” to mean a company or an
association or collection of persons as such or body of persons,
whether incorporated or not. The inclusive nature of the
definition indicates that juridical persons can come within its
ambit. The submission advanced on behalf of the petitioners is
that collection of persons or, for that matter, association, is
absolutely vague.
178. The aforesaid enunciation of law clearly lays stress on
determinate and definite body. It also lays accent on identifiable
body and identity of the collection of persons. It also
significantly states about the test of precision so that the
collection of persons have a distinction. Thus, it is fallacious to
contend that it is totally vague and can, by its inclusiveness,
cover an indefinite multitude. The Court has to understand the
concept and appositely apply the same. There is no ambiguity.
Be it noted that a three-Judge Bench, though in a different
context, in Aneeta Hada v. Godfather Travels & Tours (P) Ltd. has
ruled that a company has its own reputation. Be that as it may,
it cannot be said that the persons covered under the
Explanation are gloriously vague.
197. Now, we shall advert to Section 199 CrPC, which
provides for prosecution for defamation. Sub-section (1) of the
said section stipulates that no court shall take cognizance of an
offence punishable under Chapter XXI of the Penal Code, 1860
except upon a complaint made by some person aggrieved by the
offence; provided that where such person is under the age of
eighteen years, or is an idiot or a lunatic, or is from sickness or
infirmity unable to make a complaint, or is a woman who,
according to the local customs and manners, ought not to be
compelled to appear in public, some other person may, with the
leave of the court, make a complaint on his or her behalf. Sub-
section (2) states that when any offence is alleged against a
person who is the President of India, the Vice-President of India,
the Governor of a State, the Administrator of a Union Territory
or a Minister of the Union or of a State or of a Union Territory, or
any other public servant employed in connection with the affairs
of the Union or of a State in respect of his conduct in the
discharge of his public functions, a Court of Session may take
cognizance of such offence, without the case being committed
to it, upon a complaint in writing made by the Public Prosecutor.
Sub-section (3) states that every complaint referred to in sub-
section (2) shall set forth the facts which constitute the offence
alleged, the nature of such offence and such other particulars as
are reasonably sufficient to give notice to the accused of the
offence alleged to have been committed by him. Sub-section (4)
mandates that no complaint under sub-section (2) shall be
made by the Public Prosecutor except with the previous sanction
of the State Government, in the case of a person who is or has
been the Governor of that State or a Minister of that
 20 Cr.M.P. No. 152 of 2020

Government or any other public servant employed in connection

with the affairs of the State and of the Central Government, in
any other case. Sub-section (5) bars the Court of Session from
taking cognizance of an offence under sub-section (2) unless the
complaint is made within six months from the date on which the
offence is alleged to have been committed. Sub-section (6)
states that nothing in this section shall affect the right of the
person against whom the offence is alleged to have been
co.mmitted, to make a complaint in respect of that offence
before a Magistrate having jurisdiction or the power of such
Magistrate to take cognizance of the offence upon such
complaint.
198. The said provision is criticised on the ground that
“some person aggrieved” is on a broader spectrum and that is
why, it allows all kinds of persons to take recourse to
defamation. As far as the concept of “some person aggrieved” is
concerned, we have referred to a plethora of decisions in course
of our deliberations to show how this Court has determined the
concept of “some person aggrieved”. While dealing with various
Explanations, it has been clarified about definite identity of the
body of persons or collection of persons. In fact, it can be stated
that the “person aggrieved” is to be determined by the courts in
each case according to the fact situation. It will require
ascertainment on due deliberation of the facts. In John Thomas
v. K. Jagadeesan while dealing with “person aggrieved”, the
Court opined that the test is whether the complainant has
reason to feel hurt on account of publication is a matter to be
determined by the court depending upon the facts of each case.
In S. Khushboo, while dealing with “person aggrieved”, a three-
Judge Bench has opined that the respondents therein were not
“person aggrieved” within the meaning of Section 199(1) CrPC
as there was no specific legal injury caused to any of the
complainants since the appellant’s remarks were not directed at
any individual or readily identifiable group of people. The Court
placed reliance on M.S. Jayaraj v. Commr. of Excise and G.
Narasimhan and observed that if a Magistrate were to take
cognizance of the offence of defamation on a complaint filed by
one who is not an “aggrieved person”, the trial and conviction of
an accused in such a case by the Magistrate would be void and
illegal. Thus, it is seen that the words “some person aggrieved”
are determined by the courts depending upon the facts of the
case. Therefore, the submission that it can include any and
everyone as a “person aggrieved” is too specious a submission
to be accepted.”

By way of relying on the said judgment he submits that

constitutional validity of section 499 I.P.C. was the subject before the

Hon’ble Supreme Court and analyzing all the judgments, the Hon’ble
 21 Cr.M.P. No. 152 of 2020

Supreme Court held that this section is valid. He relied in the case of

“M.N. Damani v. S.K. Sinha and Others” reported in AIR 2001 SC 2037.

Paragraph nos.7, 8, 9, 10 and 11 of the said judgment are quoted

hereinbelow:

“7. We have considered the rival submissions. The High

Court relying on para 7 of the judgment in Madhavrao
Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988)
1 SCC 692 : 1988 SCC (Cri) 234 : AIR 1988 SC 709]
exercising jurisdiction under Section 482 quashed the
proceedings. The learned Judge did not bestow his attention
to the facts of that case and the discussions made in paras 6
and 8 of the said judgment. In that case the complaint was
filed for offences punishable under Sections 406 and 407
read with Sections 34 and 120-B of the Penal Code. That
was a case where the property was trust property and one of
the trustees was a member of the family. The criminal
proceedings were quashed by the High Court in respect of
two persons but they were allowed to be continued against
the rest. In para 6 of the same judgment it is clearly stated
that the Court considered relevant documents including the
trust deed as also the correspondence following the creation
of the tenancy and further took into consideration the natural
relationship between the settlor and the son and his wife and
the fallout. Para 8 of the judgment reads: (SCC pp. 695-96)
“8. Mr Jethmalani has submitted, as we have already
noted, that a case of breach of trust is both a civil wrong and
a criminal offence. There would be certain situations where it
would predominantly be a civil wrong and may or may not
amount to criminal offence. We are of the view that this case
is one of that type where, if at all, the facts may constitute a
civil wrong and the ingredients of the criminal offences are
wanting. Several decisions were cited before us in support of
the respective stands taken by counsel for the parties. It is
unnecessary to refer to them. In course of hearing of the
appeals, Dr Singhvi made it clear that Madhavi does not
claim any interest in the tenancy. In the setting of the matter
we are inclined to hold that the criminal case should not be
continued.”
Thus, the said judgment was on the facts of that case, having
regard to various factors including the nature of offences,
relationship between the parties, the trust deed and
correspondence following the creation of tenancy. The High
Court has read para 7 in isolation. If para 7 is read carefully
two aspects are to be satisfied: (1) whether the
 22 Cr.M.P. No. 152 of 2020

uncontroverted allegations, as made in the complaint, prima

facie establish the offence, and (2) whether it is expedient
and in the interest of justice to permit a prosecution to
continue. On a plain reading of the order of the Magistrate
issuing summons to the respondents, keeping in view the
allegations made in the complaint and sworn statement of the
appellant, it appears to us that a prima facie case is made
out at that stage. There are no special features in the case to
say that it is not expedient and not in the interest of justice to
permit the prosecution to continue. The learned Judge has
failed to apply the tests indicated in para 7 of the judgment
on which he relied. The High Court could not say at that
stage that there was no reasonable prospect of conviction
resulting in the case after a trial. The Magistrate had
convicted the respondents for the offences under Section
138 of the Negotiable Instruments Act and the appeal filed by
the respondents was also dismissed by the learned Sessions
Judge. Assuming that the imputations made could be
covered by Exception 9 of Section 499 IPC, several
questions still remain to be examined — whether such
imputations were made in good faith, in what circumstances,
with what intention, etc. All these can be examined on the
basis of evidence in the trial. The decisions
in Manjaya v. Sesha Shetti [ILR (1888) 11 Mad 477] , Sayed
Ally v. King Emperor [AIR 1925 Rang 360] and Anthoni
Udayar v. Velusami Thevar [AIR 1948 Mad 469 : 49 Cri LJ
724 : (1948) 1 MLJ 420] cited by the learned counsel for the
respondents are the cases considered “after conviction”
having regard to the facts of those cases and the evidence
placed on record. The decision in Baboo Gunnesh Dutt
Singh v. Mugneeram Chowdry [(1872) 11 WR 283 SC] arose
out of a suit for damages for defamation. These decisions, in
our view, are of no help to the respondents in examining
whether the High Court was justified and right in law in
quashing the criminal proceedings, that too exercising its
jurisdiction under Section 482 CrPC.
8. Para 6 of the judgment in Sewakram case [(1981) 3
SCC 208 : 1981 SCC (Cri) 698] reads: (SCC pp. 214-15)
“6. The order recorded by the High Court quashing the
prosecution under Section 482 of the Code is wholly
perverse and has resulted in manifest miscarriage of justice.
The High Court has prejudged the whole issue without a trial
of the accused persons. The matter was at the stage of
recording the plea of the accused persons under Section 251
of the Code. The requirements of Section 251 are still to be
complied with. The learned Magistrate had to ascertain
whether the respondent pleads guilty to the charge or
 23 Cr.M.P. No. 152 of 2020

demands to be tried. The circumstances brought out clearly

show that the respondent was prima facie guilty of
defamation punishable under Section 500 of the Code unless
he pleads one of the exceptions to Section 499 of the Code.
***
It is for the respondent to plead that he was protected under
Ninth Exception to Section 499 of the Penal Code. The
burden, such as it is, to prove that his case would come
within that exception is on him. The ingredients of the Ninth
Exception are that (1) the imputation must be made in good
faith, and (2) the imputation must be for the protection of the
interests of the person making it or of any other person or for
the public good.”

Again, in para 18 of the judgment dealing with the aspect of

good faith in relation to the 9th Exception of Section 499, it is
stated that several questions arise for consideration if the 9th
Exception is to be applied to the facts of the case. Questions
may arise for consideration depending on the stand taken by
the accused at the trial and how the complainant proposes to
demolish the defence and that stage for deciding these
questions had not arrived at the stage of issuing process. It is
stated: (SCC p. 219)
“Answers to these questions at this stage, even before
the plea of the accused is recorded can only be a priori
conclusions. ‘Good faith’ and ‘public good’ are, as we said,
questions of fact and matters for evidence. So, the trial must
go on.”
9. Para 13 of the judgment in Shatrughna Prasad Sinha
case [(1996) 6 SCC 263 : 1996 SCC (Cri) 1310] reads: (SCC
pp. 266-67)
“13. As regards the allegations made against the
appellant in the complaint filed in the Court of Judicial
Magistrate, Ist Class, at Nasik, on a reading of the complaint
we do not think that we will be justified at this stage to quash
that complaint. It is not the province of this Court to
appreciate at this stage the evidence or scope of and
meaning of the statement. Certain allegations came to be
made but whether these allegations do constitute defamation
of the Marwari community as a business class and whether
the appellant had intention to cite as an instance of general
feeling among the community and whether the context in
which the said statement came to be made, as is sought to
be argued by the learned Senior Counsel for the appellant,
are all matters to be considered by the learned Magistrate at
a later stage. At this stage, we cannot embark upon weighing
the evidence and come to any conclusion to hold, whether or
 24 Cr.M.P. No. 152 of 2020

not the allegations made in the complaint constitute an

offence punishable under Section 500. It is the settled legal
position that a court has to read the complaint as a whole
and find out whether allegations disclosed constitute an
offence under Section 499 triable by the Magistrate. The
Magistrate prima facie came to the conclusion that the
allegations might come within the definition of ‘defamation’
under Section 499 IPC and could be taken cognizance of.
But these are the facts to be established at the trial. The case
set up by the appellant are either defences open to be taken
or other steps of framing a charge at the trial at whatever
stage known to law. Prima facie we think that at this stage it
is not a case warranting quashing of the complaint filed in the
Court of Judicial Magistrate, Ist Class at Nasik. To that
extent, the High Court was right in refusing to quash the
complaint under Section 500 IPC.”
10. Having regard to the facts of the instant case and in
the light of the decisions in Sewakram Sobhani v. R.K.
Karanjia, Chief Editor, Weekly Blitz [(1981) 3 SCC 208 : 1981
SCC (Cri) 698] and Shatrughna Prasad Sinha v. Rajbhau
Surajmal Rathi [(1996) 6 SCC 263 : 1996 SCC (Cri) 1310]
we have no hesitation in holding that the High Court
committed a manifest error in quashing the criminal
proceedings exercising jurisdiction under Section 482 CrPC.
11. Since the question of limitation was not raised before
the High Court by the respondents and further whether the
offence is a continuing one or not and whether the date of the
commission of offence could be taken as the one mentioned
in the complaint are not the matters to be examined here at
this stage. In these circumstances we have to reverse the
impugned order of the High Court and restore that of the
Magistrate.

By way of relying on the said judgment, Mr. Sinha, the

learned Senior counsel appearing for the O.P.No.2 submits that in this

case again it was held that what are the prima facie materials and the

facts which are hazy that can be the subject matter of trial and the High

Court is not required to exercise its power under section 482 Cr.P.C. On

this point also he relied in the case of “Mohd. Abdulla Khan v. Prakash K.”

reported in (2018) 1 SCC 615 and relied on the paragraph nos.9, 10, 11,

14, 15, 17 and 20 which are quoted hereinbelow:

“9. Section 499 IPC defines the offence of defamation. It

 25 Cr.M.P. No. 152 of 2020

contains 10 Exceptions and 4 Explanations. The relevant portion

reads:
“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 excepted, to defame that
person.”
10. An analysis of the above reveals that to constitute an
offence of defamation it requires a person to make some
imputation concerning any other person;
(i) Such imputation must be made either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe
that such an imputation will harm the reputation of the person
against whom the imputation is made.
(ii) Imputation could be, by
(a) Words, either spoken or written, or
(b) By making signs, or
(c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and publishing
the same is:
If ‘X’ tells ‘Y’ that ‘Y’ is a criminal — ‘X’ makes an imputation.
If ‘X’ tells ‘Z’ that ‘Y’ is a criminal — ‘X’ publishes the
imputation.
The essence of publication in the context of Section 499 is
the communication of defamatory imputation to persons other
than the persons against whom the imputation is made.
11. Committing any act which constitutes defamation under
Section 499 IPC is punishable offence under Section 500 IPC.
Printing or engraving any defamatory material is altogether a
different offence under Section 501 IPC. Offering for sale or
selling any such printed or engraved defamatory material is yet
another distinct offence under Section 502 IPC.
14. In the context of the facts of the present case, first of all,
it must be established that the matter printed and offered for
sale is defamatory within the meaning of the expression under
Section 499 IPC. If so proved, the next step would be to examine
the question whether the accused committed the acts which
constitute the offence of which he is charged with the requisite
intention or knowledge, etc. to make his acts culpable.
15. Answer to the question depends upon the facts. If the
respondent is the person who either made or published the
defamatory imputation, he would be liable for punishment
 26 Cr.M.P. No. 152 of 2020

under Section 500 IPC. If he is the person who “printed” the

matter within the meaning of the expression, under Section 501
IPC. Similarly, to constitute an offence under Section 502 IPC, it
must be established that the respondent is not only the owner of
the newspaper but also sold or offered the newspaper for sale.
16. We must make it clear that for the acts of printing or
selling or offering to sell need not only be the physical acts but
include the legal right to sell i.e. to transfer the title in the
goods, the newspaper. Those activities, if carried on by people,
who are employed either directly or indirectly by the owner of
the newspaper, perhaps render all of them i.e. the owner, the
printer, or the person selling or offering for sale liable for the
offences under Sections 501 or 502 IPC, (as the case may be) if
the other elements indicated in those sections are satisfied.
17. Whether the content of the appellant’s complaint
constitutes an offence punishable under any one or all or some
of the abovementioned sections was not examined by the High
Court for quashing the complaint against the respondent. So we
need not trouble ourselves to deal with that question. We
presume for the purpose of this appeal that the content of the
appellant’s complaint does disclose the facts necessary to
establish the commission of one or all of the offences mentioned
above. Whether there is sufficient evidence to establish the guilt
of the respondent for any one of the abovementioned three
offences is a matter that can be examined only after recording
evidence at the time of trial. That can never be a subject-matter
of a proceeding under Section 482 CrPC.
20. K.M. Mathew was the “Chief Editor” of a daily called
Malayalam Manorama. When he was sought to be prosecuted
for the offence of defamation, he approached the High Court
under Section 482 CrPC praying that the prosecution be quashed
on the ground that Section 7 of the Press and Registration of
Books Act, 1867 only permits the prosecution of the Editor but
not the Chief Editor. The High Court rejected the submission.”

He further relied in the case of “Google India Private

Limited v. Visaka Industries” reported in (2020) 4 SCC 162. By way of

relying on this judgment, Mr. Sinha, the learned Senior counsel submits

that cognizance has already been taken and prima facie materials have

been disclosed. The complainant is residing at Ranchi and the statement

has been made at Ranchi and the petitioner is an aggrieved person.

Mr. Sinha, the learned Senior counsel appearing for the

O.P.No.2 distinguishes the judgment in the case of “S. Khushboo v.

Kanniammal & Anr.”(supra) which has been vehemently relied by

 27 Cr.M.P. No. 152 of 2020

Mr. Sarkhel, the learned counsel for the petitioner on the ground that in

that case one of the associate with the political party has filed the case

and most of the complaints are filed associated with the political party

and in that scenario it has been held by the Hon’ble Supreme Court that

legal injury caused were not directed at any individual or readily

identifiable group of people. He submits that O.P.No.2 is directly

aggrieved party in the case in hand and at this stage the Court may not

interfere.

In the light of the above submissions of the learned

counsels appearing on behalf of the parties, the Court has gone through

the materials on record. To answer the argument of the learned counsels

appearing on behalf of the parties, the Court is required to find out the

Explanation-2 of Section 499 I.P.C. Explanation-2 of section 499 I.P.C

makes it clear that defamation takes place when it makes an imputation

concerning a company or an association or collection of persons as such.

O.P.No.2 is of the same community whose name has been taken along

with other persons by the petitioner and whether the community is

identifiable, definite and determined body can be proved by way of

leading evidence in the trial. In the case in hand, the particular group of

community is the local resident of Ranchi and it is an admitted fact that

the statement was made at Ranchi and whether the ‘Modi community’ is

the collection of persons within the meaning of Explanation-2 of section

499 I.P.C or not, this is the subject matter of trial. It has to be found out

as to whether the particular class has been defamed or not. In his

solemn affirmation the complainant has alleged specific injury and in the

case of defamation, the person aggrieved is to be treated as equal to the

expression ‘person injured’. The word ‘injury’ is defined under section

44 of the I.P.C and denotes any harm whatever illegally caused to any

person, in body, mind, reputation or property. The object of section 199

 28 Cr.M.P. No. 152 of 2020

Cr.P.C. appears to limit the right of the complainant/person who suffered

injury. Ordinarily, the person aggrieved directly can maintain the

complaint under section 199 Cr.P.C. It is settled law that an aggrieved

person has suffered the injury or not can be determined by the offence

and specific circumstances to be led in the trial. The Court has given its

anxious and careful consideration to the submission of the learned

counsel appearing on behalf of the petitioner and particularly with regard

to the judgments relied by him and finds that the case of “Abhijit Pawar

v. Hemant Madhukar Nimbalkar and Another”(supra) relied by the

learned counsel for the petitioner the enquiry was not made. In that

situation, the Court has quashed the proceeding. In the case in hand, on

the solemn affirmation one enquiry witness was examined and thereafter

the court passed the order. In the case of “G. Narasimhan, G. Kasturi and

K. Gopalan v. T.V. Chokkappa and Analogous cases”(supra), it has been

held that such a collection of persons must be an identifiable body so

that it is possible to say with definiteness that a group of particular

persons, as distinguished from the rest of the community, was defamed.

In the case in hand, the allegation with regard to the entire community

of Modis and this aspect of the matter has been considered by the

Hon’ble Supreme Court in the case of “Shatrughna Prasad Sinha v.

Rajbhau Surajmal Rathi & Ors.”(supra) in which it has been held that the

allegation is against the Marwari community, all Marwari community are

affected. Moreover, the O.P.No.2 is a practicing advocate of Jharkhand

High Court and the speech was made at Ranchi. Thus, the Modi

community of Ranchi is also affected. In the case of “S. Khushboo v.

Kanniammal & Anr.”(supra), relied by the learned counsel appearing on

behalf of the petitioner, the complainants were associated with the

political party and in such situation, the Hon’ble Supreme Court has held

that no specific legal injury caused to any of the complainants. In the

 29 Cr.M.P. No. 152 of 2020

case in hand, the readily identifiable group of people the allegations have

been made. Thus, those judgments are not helping the petitioner. In the

case of “Sahib Singh Mehra v. State of U.P”(supra), particularly the Public

Prosecutors were defamed and in such a situation, the Hon’ble Supreme

Court has held that such group of persons are covered by Explanation-2

of section 499 I.P.C and that could be the subject matter of defamation.

Thus, this judgment is on the other footing and is not helping the

petitioner. In the case of “Balasaheb Keshav Thackeray v. State of

Maharashtra & Ors.”(supra), since the allegation made against the

utterance alleged to have been made by the petitioner of that case

against Sonia Gandhi and in such situation, the Hon’ble Supreme Court

has held that the petitioner was not liable and identical was the situation

in the case of “Kalyan Bandyopadhyay v. Mridul De”(supra), as the Chief

Minister of West Bengal has not moved however, some workers of his

party has moved and that is why the Hon’ble Supreme Court has

interfered. In the case of “Business Standard Pvt. Ltd. and Ors. v.

Lohitaksha Shukla and Ors.”, relied by the learned counsel appearing for

the petitioner, the Hon’ble Supreme Court found that the complaint is not

part of identifiable class or definite association or collection of persons

and that is why it has interfered. In the case in hand, the entire Modi

community have been defamed by the alleged utterance of this

petitioner. Thus, this judgment is not helping the petitioner.

Applying the aforesaid principles as to whether the case in

hand satisfies the test of Explanation-2 of section 499 I.P.C. The

particular community is spread over India as well as abroad and the

statement was made at Ranchi and as to whether the person can be

singled out individually to say that he has also been defamed and the

community, association in terms of Explanation-2 of section 499 I.P.C are

made out or not are the subject matter of trial. The Court has perused
 30 Cr.M.P. No. 152 of 2020

the cognizance order dated 07.06.2019 and finds that the learned court

has applied his judicial mind and after disclosing the prima facie materials

took the cognizance and identical was the situation in the case of

“Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi & Ors.”(supra)

where the entire Marwari community was defamed and the Hon’ble

Supreme Court has said that the facts are to be proved in the trial and

prima facie all the Marwari community has been defamed in view of the

statement. The ‘right of reputation’, as per the judicial interpretation is

the dimension of right of life and also comes in the ambit of Article-21 of

the Constitution of India.

In view of the above facts, reasons and the analysis, the

Court comes to the conclusion that all the contentions are required to be

proved in the trial and this Court is not required to roam into and come

to the conclusion at this stage as to whether Explanation-2 of section 499

I.P.C has been proved or not.

Accordingly, Cr.M.P.No.152 of 2020 is dismissed.

( Sanjay Kumar Dwivedi, J.)

SI/;