- 1 - (By Sri Uday Holla, Senior Counsel for Sri Satish Ninan & Sri Santosh Mathew, Advocates)

Transcription

1 - 1 - IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 12 TH FEBRUARY 2013 BEFORE THE HON BLE MR.JUSTICE B.V.PINTO CRIMINAL PETITION NO.10710/2012 BETWEEN Sri.Rajeev Chandrasekhar, S/o. Air Cdre, Chandrasekhar (Retd) Aged 48 years, Residing at No.375, 13 th Main, 3 rd Block, Koramangala, Bangalore Petitioner (By Sri Uday Holla, Senior Counsel for Sri Satish Ninan & Sri Santosh Mathew, Advocates) AND Sri.Kenchanagouda S/o.Hanumantagouda Patil, Age 33 years, Occ.: Advocate, R/o.: No.21, 2 nd Floor, Geeta Complex, Jubilee Circle, P.B. Road, Dharwad.... Respondent (By Sri S. S. Yadrami, Advocate) This criminal petition is filed under section 482 of Cr.P.C., seeking to quash the complaint in

2 - 2 - C.C.No.112/2012 on the file of the I-Addl. Senior Civil Judge & CJM, Dharwad, insofar as it relates to the petitioner, etc.,. This criminal petition coming on for dictating orders, this day, the Court made the following: ORDER This petition is filed seeking to quash the complaint in C.C.No.112/2012, on the file of the I Additional Senior Civil Judge and CJM, Dharwad (hereinafter called as the trial Court for short). 2. The complainant who is the respondent herein has filed a complaint under Section 200 of Cr.P.C. before the trial Court on alleging commission of offences under Sections 499 and 500 of IPC by the accused who are named as Suvarna News 24x7, Mr.Suresh Selvaraj, Mr.M.Visweshwara V. Bhat, Smt. Shwetha and Mr.Ranganath Bharadwaj. 3. It is the case of the complainant before the trail Court that the aforesaid accused persons have

3 - 3 - published the defamatory imputations in the form of telecast in the TV channel and that the said publication has been continued for more than one occasion only with an intention to defame and insult the complainant and other members of the legal fraternity. It is his complaint that the advocates are referred as gundas in the said publication and that the said imputation being false, the accused have committed the offence of defamation. 4. The trial Court after taking the cognizance of the offence recorded the sworn statement of the complainant. The complainant also produced two C.Ds and filed an affidavit. Thereafter, by order dated , the trial Court held that there are sufficient materials to proceed against the accused and hence, ordered for registration of the Criminal Case against the accused Nos.1 to 5 for the offence punishable under Section 500 read with Section 34 of IPC and further ordered for issue of summons to the

4 - 4 - accused subject to compliance of Section 204 of Cr.P.C. The trial Court thereafter registered the case as C.C.No.112/2012 and issued process to the accused. 5. The petitioner before this Court, is one Rajeev Chandrashekhar, who has not been arrayed as accused by the complainant. Accused No.1 in the complaint is Suvarna News 24x7, Asianet News Pvt. Ltd., represented by the Proprietor Rajeev Chandrashekar and the address given is No.204, Embassy Square, No.148, Infantry Road, Bangalore. However, it is not in dispute that Rajeev Chandrashekar is shown as representative of the accused No.1 by the complainant in his complaint. Aggrieved by the said order of the trial Court, on receipt of the summons from the Court, the petitioner has filed this petition praying to quash the proceedings as against him. 6. Heard Shri Udaya Holla, the learned Senior Counsel appearing for the petitioner and Shri

5 - 5 - S.S.Yadrami, the learned counsel appearing for the respondent. 7. Shri Uday Holla, the learned Senior Counsel submitted that the petitioner cannot be summoned, since he is only a Chairman of the Company and that he is not in charge of the day to day affairs of the Company. It is further submitted by him that the petitioner is not responsible for the day to day conduct of the business of the company and in fact, he was not even aware of the publication made every day in the news channel, he being the Chairman of the Asianet News Pvt. Ltd., which owns Suvarna News 24x7 channel. Hence he submits that the proceedings against the petitioner Rajeev Chandrashekhar is abuse of process of law and therefore he submits that the said proceedings may be quashed as against the petitioner. 8. The learned Senior Counsel for the petitioner cited the following rulings.

6 - 6 - (i) (ii) 1983 Cri.L.J. 777 (S.Nihal Singh and others vs. Arjan Das, New Delhi) (2010) 10 SCC 479 (Maharashtra State Electricity Distribution Company Limited and another vs. Datar Switchgear Limited and others). (iii) (2010) 11 SCC 469 (State of NCT of Delhi vs. Rajiv Khurana). (iv) (v) (vi) (2009) 1 SCC 516 (R. Kalyani vs. Janak C. Mehta and others). (1998) 5 SCC 343 (State of Haryana vs. Brij Lal Mittal and others). (2008) 5 SCC 662 (S.K. Alagh vs. State of Uttar Pradesh and others). (vii) (2009) 6 SCC 475 (Keki Hormusji Gharda and others vs. Mehervan Rustom Irani and another). (viii) (1998) 5 SCC 749 (Pepsi Foods Ltd., and another vs. Special Judicial Magistrate and others).

7 - 7 - (ix) 1998 Cri.L.J (Secunderabad Health Care vs. Secunderabad Hospitals). (x) (2011) 1 SCC 74 (Iridium India Telecom Limited vs. Motorola Incorporated and others). 9. The cumulative effect of all the decisions cited above is that a person does not become criminally liable for an act of a company merely because he was a Director, Chairman or Managing Director of the said company. It is necessary to prove that the said person was actively involved in the day-to-day activity of the company and is directly responsible for the alleged act. There is no vicarious liability in the criminal jurisprudence. The order of the learned Magistrate summoning the accused must reflect that he has adverted to this aspect and has given his thought to the said position of law. 10. On the other hand, Sri S.S.Yadrami, the learned counsel for the respondent/complainant

8 - 8 - submits that the case is filed against the Suvarna News 24x7 channel, which is owned by the petitioner herein. Therefore the petitioner being the Chairman and Managing Director of the company is deemed to be aware of the day to day activities of the company, since the news alleged in the complaint has been broadcast more than once, regularly for nearly one week and that having regard to the wordings used in the channel, the said words are per-se defamatory and hence the petitioner being the Chairman of the company is liable for the act committed by him. 11. From the above rival submissions it is seen that the 1 st accused in the criminal case is shown as Suvarna News 24x7 channel, which is not a human person and hence in a criminal proceedings the procedure to be adopted when a corporation or a company is an accused is mentioned in Section 305 of Cr.P.C. Section 305 of Cr.P.C. states as follows:

9 Procedure when corporation or registered society is an accused. (1) In this section, corpor ation means an incorpor ated company or other body corpor ate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860). (2) Where a corpor ation is the accused person or one of the accused persons in an inquiry or tr ial, it may appoint a representative f or the purpose of the inquiry or tr ial and such appoin tmen t need not be under the seal of the corporation. (3) Where a represen tative of a corpor ation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement th at the accused shall be examined shall be construed as a requirement that the representative shall be examined.

10 (4) Where a represen tative of a corpor ation does not appear, any such requirement as is referred to in sub-section (3) shall not apply. (5) Where a statemen t in wr iting purpor ting to be signed by the managing director of the corpor ation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statemen t has been appointed as the representative of the corporation for the purposes of this section, is f iled, the Cour t shall, unless the con tr ary is proved, presume that such person has been so appointed. (6) If a question arises as to whether any person, appearing as the representative of a corpor ation in an inquiry or tr ial bef ore a Cour t is or is not such representative, the question shall be determined by the Cour t. 12. Sub-Section (2) of the said Section says that where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a

11 representative for the purpose of inquiry or trial and such appointment need not be under the seal of the corporation. 13. Sub-Section (3) of the said Section further provides certain rules regarding appearance of such representative for proceeding with the matter in a criminal case when a corporation or a society is an accused. 14. While this Court has no dispute regarding points of law that are pronounced by the judgment and as stated by the learned counsel for the petitioner, it is seen that the complainant has not mentioned Rajeev Chandrashekhar as an accused, whereas the complainant has mentioned Suvarna News 24x7 channel as the accused No.1. Therefore necessarily it is not required that the petitioner himself shall appear before the Court since the allegations are made against a corporate company namely Asia Net News Pvt. Ltd., of which Suvarna News 24x7 is a channel through which

12 the company runs the show. Since the Magistrate has already held that prima facie accused No.1 is also responsible for the publication, it would be premature for this Court to give a finding as to whether the accused No.1 would ultimately be found guilty or otherwise, which has to be pronounced only by the trial Court at the time of pronouncing a judgment after the full pledged trial. It is obvious that from the description of the accused No.1 in the complaint it does not appear that the petitioner Rajeev Chandrashekhar is an accused whereas he is representing the company Asia Net News Pvt. Ltd. 15. Under the circumstances, I am of the opinion that it would be premature to quash the proceedings as against accused No.1 represented by the petitioner Rajeev Chandrashekhar. However taking benefit of Section 305 of Cr.P.C., it is left to the accused No.1 Suvarna News 24x7 and Asia Net News Pvt. Ltd., to find recourse to the said provision of Cr.P.C. and further to

13 proceed with the matter in accordance with law. The question of criminal liability of the petitioner or otherwise is left open for the learned Magistrate to decide at the time of final disposal of the case in the wake of various pronouncements of the Apex Court on the subject. 16. Accordingly the petition is disposed of. Vnp*/Mrk SD/- JUDGE