in the court of additional chief judicial …sivasagarjudiciary.gov.in/judgment/cr-81of11.pdf · in...

IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE:: SIVASAGAR Cr. Case No. 81 of 2011

Under Section 499/500of Indian Penal Code

Complainant:-

Ranjit Buragohain

S/O- Lt. Ghana Kanta Buragohain

Paschim Obhyopur Development Block

Suffry, in the district of Sivasagar

Resident of Beltola Bhetapara Chariali

Kanaklata Path, Guwahati 28

House No. 18

Accused:-

Surjya Kumar Bora

S/o Guna Bora

Staff Reporter Oxomiya Pratidin

Resident of Ward No. 11

Sunari Town, Dist - Sivasagar

Present

Sri Rupak Rajak, AJS

Addl. Chief Judicial Magistrate,

Sivasagar, Assam

Advocate Present for the Complainant: - Mr. A. M. Bora

Advocate Present for the Defense: - Mr.M. Goduka

Dates of Recording Evidence: - 27-02-13, 26-09-13,08-08-14

Argument heard on: - 01-08-15

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JUDGMENT

14th August 15

1. The prosecution story in nutshell is that the complainant is working as a

Block Development Officer (in charge) Paschim Obhoyapur Development

Block. In the district of Sivasagar. Assam and is a permanent resident of

Guwahati and presently residing in Sivasagar and is a citizen of India by

birth.

2. That the complainant is a Senior Officer of Assam Administrative Service

and is known to be an upright officer throughout the state for his service

and he serving the society without any kind of blemish.

3. That the complainant has always been known for his benevolent character

as well as his upright nature. Owing to his simple living and high thinking

attitude, the complainant is loved and respected not only by the people of

his own society, but also by the hundreds of other person who have come

to contact with him from time to time. On account of his honest, upright

and dynamic nature, the complainant enjoys a high reputation in the

estimation of the public at large.

4. That the complainant begs to state that the charged accused person is a

staff reporter local/correspondent of the vernacular Assamese daily news

paper Oxomiya Protidin having circulation over all over Assam and is a

resident of Ward No. 11, Sonari in the district of Sivasagar Assam. The

charged accused person owing to his personal grudges is vocal against the

complainant for no fault of the complainant.

5. That the complainant begs to state that owing to said personal grudges, the

charged accused on various occasions had tried to malign his image in the

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general public by writing and publishing various false and fabricated news

item in the aforesaid news paper using his occupational advantage.

6. That the complainant begs to state that owing to such grudge the accused

being the local correspondent of the above mentioned daily news paper

authored certain news items which were published in the same where

certain false and malafide allegations were put up against him.

7. The complainant further beg to state that the said vernacular news paper

Oxomiya Protidin is published from Guwahati/Dibrugarh and has wide

circulation in the entire state of Assam.

8. That on 24-03-09 news item under the caption

was published in the aforesaid vernacular newspaper where it has been

alleged by the charged accused that the complainant has falsely tried to

convince certain journalists that National Rural Employment Guarantee

Scheme herein after referred to as NREGA) was successfully implemented in

the Obhoyapur Development Block. In said news item it was further alleged

by the charged accused that the complainant has misappropriated

government fund allocation under the said scheme.

9. That again on 22-05-09 another news item under the caption

?was published in the same newspaper by the charged

accused and in the said news item also, the charged accused with the some

intention other than bonafide, made certain baseless allegation against the

complainant by alleging interalia that the compliant had misappropriated

funds allotted for Sampoorna Gramin Rozgar Yujana (SGRY) and practiced

partially wile allotting said funds to the Gaon Panchayats under his

jurisdiction being a Govt. official who responsible for the implementation said

scheme.

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10. Another such news item published again in the aforesaid news paper on its

20-06-09 issue under the caption , - . In

the said news item along with other false allegation it has been further

alleged by the charged accused that the complainant also issue job card to

a dead person namely to one Mangalu Majhi of Vaju Gaon Panchayat under

the aforesaid scheme.

11. That another news item was published in the said newspaper on 04-12-09

under the caption by the charged

accused that the complainant made payment to NREGA workers in cash for

the financial year 2008-2009 and out of said payments complainant

deducted 10-50% for the workers wage for his own purpose. The

complainant bergs to state that the news item is totally false and fabricated

in as much as no wages to the workers were paid in cash as alleged by the

charged accused and the all payments to the workers for the said period

were made through bank account of the workers opened for his said

purpose as per government rules and guidelines for successful

implementation of the said scheme.

12. That the complainant begs to state that all the aforesaid news item were

authored by the accused and being a staff reporter of said newspaper he

had published the aforesaid all false and fabricated news item in his

newspaper using his occupational advantage against the instant

complainant.

13. That the complainant begs to state that the allegations put up against him

are fictitious and baseless. The complainant being the Block Development

Officer has no jurisdiction to allot fund to Gaon Panchayats and the

allegation that, he has discriminated while allotting fund to the Panchayat is

totally baseless and false in as much as that the allotment of the fund

under aforesaid scheme are to be strictly done by the Director DRDA

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himself. In the news item published on 22-05-08 it has been alleged that

the complainant partially while allotting funds to the Gaon Panchayats under

his jurisdiction, but the relevant act incorporate d for the purposed is very

much clear about the authority who can a lot fund to the Gaon Panchayats

under the schemes.

14. That the further in the news item dated 20-06-09 it has been alleged by

the charged accused person that the job card has been allotted against the

name even the dead persons and to prove it, the name of one Manglu Majhi

is mentioned in the news item by the accused as a dead person against

whom purportedly job card is issued under NREGA by the complainant. It is

pertinent to mention herein that said Manglu Majhi is still alive and very u

much working with the help of Job card issued to him as contrary to their

allegation made by the charged accused in the aforesaid news item and a

said Manglu Majhi wrote a letter to the complainant to controvert the said

news item.

15. That soon after publication of news report in the aforesaid vernacular news

daily, several friends, relatives and acquaintances of the complainant had

embarrassing questions to the complainant regarding the news item,

thereby causing irreparable damages to his reputation. It would be relevant

that he herein that one of close friends of the complainant one Sri Lachit

Das, General Secretary for al Assam Extension Offices & Panchayat and

Women& Children Association who is resident of Geeta nagar, House No. 3,

Guwahati 24 had informed the complainant after reading the news report

and expressed his concern about the state of affairs centering the news

item on 06-12-09 from the aforesaid news item It was evident in the face of

it that the name and fame of the complainant had been harmed in the eye

of the public and especially before his near friends and relative the same

was also confirmed by the said Sri Lachit Das.

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16. That the complainant begs to state that when he visited Guwahati in the

month of November 2009 for his official work, his sister Smi. Deepali

Bailung and other close relative who are residence of Guwahati questioned

the integrity of the complainant as they had come across the above three

news item published the charged accused and also informed the

complainant and that his reputation in the eyes and estimates other has

deeply degraded. The complainant only then came to know the serious

implication made by the aforesaid news item on his reputation.

17. That the complainant being highly embarrassed by the publication of the

sais news articles, had sent clarification to the editor, Axomiya Pratidin,

Guwahati Assam on stating all facts of allegation that was put up against

him as aforesaid but clarification never been published in the same

newspaper at the instances of the accused.

18. That the complainant begs to state that the imputation and the allegation

made against him are totally false and baseless and it has done

considerable damage to him in the terms of reputation in the society.

19. That the complainant begs to state that the imputations made in the

aforesaid news item published in the assamese daily newspaper OXOMIYA

PRATIDIN in its aforesaid issues authored and compiled by the accused

who is the local correspondence/staff reporter of said daily and thereby he

has committed an offence triable u/s 499/500 of the Indian Penal Code and

are liable to be prosecuted there under.

20. On the basis of the complainant this court has taken cognizance of offence

under section 499/500 IPC against the accused Surjya Kr. Bora.

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21. On summons the accused appeared before the court and he was allowed to

go on bail. The particulars of offences under section 419/500 IPC are

explained to the accused to which he pleads not guilty.

22. During trial the complainant examined four witnesses. The accused

examined none.

Points for Determination:

Whether the accused Surjya Kr. Bora published imputations against the

complainant Ranjit Buragohain in the daily news paper Asomiya

Pratidin knowing or reason to believe that such imputation will harm

the reputation of the complainant?

I have heard the argument of both the sides. I have gone through the

evidences as laid by the prosecution and I have considered all relevant materials

on record. My decision and reasons for the decision are as follows:-

23. The offence of the defamation consist of three essential ingredients, viz

a. making or publishing any imputation concerning any person;

b. such imputation must have been made by words either spoken or

intended to be read, or by science, or by visible representations

c. such imputations must have been made with the intention of harming

or knowing or having a reason to believe that it will harm the

reputation of the person concerning whom it is made.

24. In this case the complainant alleged that the accused on four occasions

published four different defamatory news items against him on the daily

newspaper Pratidin

25. The first was published on March 24, 2009 in the daily newspaper Asomiaya

Pratidin. The news item was published under caption

.under this heading the news is published that the complainant

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who is a Development officer tried to skin some information for which there

was an upshot.

26. The second news item was published on May 22, 2009 in the same

newspaper Asomiya Pratidin. The news was published under the caption

?Under this news item it is published

that one Naresh Das and Ratan Das are openly miss-appropriating the

public money with the assistance of in-charge BDO. It is also reported that

the public made allegations that for the said misappropriation, the villagers

could not see the face of developments of their village.

27. The third news item was published on 20th June 2009 in the same

newspaper Asomia Pratidin. The news was published under the

heading , - It is reported that the

complainant along with Panchyat President and others instead of issuing Job

Card to the deserving labours have kept it secretly. The news is also sub-

headed that the job cards are even issued to dead persons. It is also alleged

that the complainant extended his direct assistance to the Bhajo Gaon

Panchayat in the financial scam.

28. The fourth news item was published on 4 December 2009. It is reported

under the heading it is alleged that

at the time of giving the money to the labourers, 50% of the money was

taken by Panchayat authority. It is further alleged that payments are also

being made to the labour who has not even worked for a day. As per the

report the complainant is involved in such financial scam.

29. From the above four news items it appears that the complainant who is a

public servant is involved in the scams relating to issuance of job card and

he directly extended his assistance to those panchayat officials.

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30. The complainant is appeared as PW 1. He deposed that the allegations

made against him are fictitious and baseless. The complainant being the

Block Development Officer has no jurisdiction to allot fund to Gaon

Panchayats and the allegation that, he has discriminated while allotting fund

to the Panchayat is totally baseless and false in as much as that the

allotment of the fund under aforesaid scheme are to be strictly done by the

Director DRDA himself. He further deposed that all the informations relating

to NREGA scheme has been uploaded in the Internet and also maintained

manually. That the news item so published is false and the accused

published the same with the intention to injure the reputation of the

complainant.

31. During his cross-examination the complainant admitted that the names of

the chief editor and the publisher are written in the newspapers. He also

admits that the news item so sent by the reporter can be edited by the

editors.

32. During argument learned counsel for the accused submitted that the editor

and publisher of the newspapers are not arrayed in the case. He submits

that whatever report sent by a reporter to the editor, of a newspaper is

subject to modification and acceptance of the editor. It is the final discretion

of the editor to publish or not to publish the news item. In this case the

editor printer or publisher are not made parties. So the accused cannot be

held responsible for the news item. In absence of the editor and publisher

the reporter of the news item cannot be held guilty.

33. On the other hand learned counsel for the complainant submitted that

journalists do not occupy any special privilege and have no greater freedom

than others to make any imputations or allegations sufficient to ruin the

reputation of a citizen. He submitted that the complainant is a responsible

public officer having reputation in the society. For the publication of the

news items in question his reputation has been duly injured. He also

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submitted that it is not a single occasion where the accused published such

defamatory news item against the complainant. But the accused repeatedly

on four occasions have published defamatory news items against the

accused. Therefore it is clear that the intention of the accused is only to

defame the complainant.

34. PW 2 Manglu Majhi submitted that the accused in his report falsely stated

that he is dead. He is a resident of village Bhojo and Bhojo Gaon Panchayat

issued him Job Card. That after receiving the job card he worked and

money was deposited in his bank account.

35. Learned counsel for the complainant submitted that PW 2 Manglu Majhi is

the person who is reported to be dead by the accused. Therefore it is

crystal clear that the accused published the defamatory report intentionally.

Learned counsel for the accused submitted that Manglu Majhi was the

complainants witness No.2 who was examine u/s 202 Cr.P.C at Guwahati.

But the PW Manglu Majhi in his cross replied that he never visited Guwahati.

36. Learned Counsel for the accused relied on Supreme Court case reporting

K.M. Mathew Vs. State of Kerala and Anr reporting 1992 AIR 2206.

Honble Apex Court has held that:-

The complainant seems to rely upon the presumption under Section 7 of the

Press and Registration of Books Act, 1867 ('the Act'). But Section 7 of the Act

has no applicability for a person who is simply named as 'Chief Editor'. The

presumption under Section 7 is only against the person whose name is

printed as 'editor' as required under Section 5(1). There is a mandatory

(though rebuttable) presumption that the person whose name is printed as

'Editor' is the editor of every portion of that issue of the newspaper of which

a copy is produced. Section 1(1) of the Act defines 'Editor' to mean 'the

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person who controls the selection of the matter that is published in a

newspaper'. Section 7 raises the presumption in respect of a person who is

named as the editor and printed as such on every copy of the newspaper.

The Act does not recognise any other legal entity for raising the presumption.

Even if the name of the Chief Editor is printed in the newspaper, there is no

presumption against him under Section 7 of the Act.

37. Again learned Counsel relied on Jayanta Barua and Anr. Vs Dilip

Barua reporting 2014 (2) GLT 93. Honble Gauhati High Court has held

that:- A perusal of section 7 would go to show that under section 7 of the

Act, in any legal proceeding, civil as well as criminal, unless the contrary is

proved, production of a declaration or in the case of the editor, a copy of

the newspaper containing the name of the editor, shall be held to be

sufficient evidence that the persons whose name appear in the declaration

as the printer or publisher, or printer and publisher are the printer or

publisher, or the printer and publisher and the name of the editor as printed

in the newspaper is the editor of every portion of that issue of the

newspaper. Thus, presumption can be drawn against the editor, publisher

and printer with regard to publication of a news item. In view of the

aforesaid, the persons declared as editor, publisher and printer are liable for

any defamatory imputation in any news item in a newspaper as

presumption as to awareness of contents of news item can be raised

against them. It is to be noted selection of news item cannot amount to

making of news. Editor selects the news and the printer and publisher

publish the news item. Publication of imputation alone constitutes an

offence under section 499 IPC.

38. After going through the above citations what I understand is that to make

the editor, printer and publisher of a respective newspaper liable for a news

item under section 499 IPC his name is not required to be published in the

respective newspaper. Under section 7 of Press and Registration of Books

Act their names can be presumed. There is a mandatory (though

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rebuttable) presumption that the person whose name is printed as 'Editor' is

the editor

39. In this case there is no dispute regarding the editor of the news item. Non-

implementation of the editor and publisher does not absolve the reporter

from the liability of the news item being defamatory. The accused has not

deputed that he has not published the news.

40. Complainant relied on the Judgment of Honble Delhi High Court reporting

Mrs. Shobhana Bhartia and Others vs. Net of Delhi and Anr. (2007)

ILR 7 Delhi 1. In this case Honble Delhi High Court has held that:-

Every individual has a right to protect his reputation. Disparaging

and defamatory statements made about a person to a third person or

persons without lawful justification or excuse are actionable in law. As

observed by the Supreme Court in the decision reported as State of Bihar

v. Lal Krishna Advani MANU/SC/0716/2003MANU/SC/0716/2003:

AIR2003SC3357 reputation is an integral and important aspect of dignity

of every individual. The right to preservation of one's reputation is

acknowledged as a right in rem, a right good against all the world.

But freedom of speech and expression are the foundation of all

democratic organisations. Freedom of expression stems from the

requirement that members of a democratic should be sufficiently

informed. In the decision reported as Attorney General v. Times

Newspaper Ltd. (1973) 3 All ER 54, it was observed that freedom of

expression has following four broad social purposes to serve:

(i) It helps an individual to attain self fulfillment.

(ii) It assists in the discovery of truth.

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(iii) It strengthens the capacity of an individual in participating in

decision making.

(iv) It provides a mechanism by which it would be possible to

establish a reasonable balance between stability and social change.

The right of the print media to publish news pertaining to matters

of public concern is recognized as an integral part of freedom of

expression. (See decisions of the Supreme Court in Virender v. State of

Punjab AIR 1958 SC 986 and Sakal Papers v. Union of India

MANU/SC/0090/1961MANU/SC/0090/1961 : [1962]3SCR842 .

The fundamental objective of journalism is to serve the people

with news, views, comments and information on matter of public interest

in a fair, accurate, unbiased, sober and decent manner. It is the

legitimate function of a newspaper in a democratic set up to act as the

champion of a clean administration and sentinel of public interest, and as

such a newspaper is within its right to expose and bring to the notice of

the general public any lapse or malpractice in the working of a public

authority including acts of nepotism and favoritism.

41. The complainant also relied on one judgment of Honble Karnataka High

Court. It is reported in Subhash K. Shah Vs. K. Shankar Bhat 1993 Cr.

L. J 1296. Honble High Court has held that :-

10. The respondent was working as a journalist. He was holding a

responsible position. He appears to be an educated man. Therefore,

there is more responsibility on the respondent in making proper use of his

pen. Words are weapons. In these days, the newspapers, radios and T.V.

have spread to every nook and corner of the society. The persons who

use words written or spoken or use in representation in presenting their

ideas in these medium of communication must do it with a full sense of

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responsibility and if they misuse the liberty given to them, they are also

liable to answer for the consequences of their acts of misusing their

words or representations in these medium Viewing in this context, the

purpose of sentence in such cases is to reform the accused so as to make

the likeminded persons deter from doing any similar acts.

11. In Jagadish B. Rao v. State 1974 Cri LJ 1358 Daman and Diu Judicial

Commissioner's Court has observed as follows :-

"16. Assassination of character has been considered by Courts from

times immemorial as no less serious than assassination of persons

because character of a person is one of the most valuable things that a

person possesses. The conduct of the accused person subsequent to the

publication of libel, before and during the trial may also have to be taken

into consideration."

12. In Saheb Singh Mehra v. State of Uttar Pradesh,

MANU/SC/0067/1965MANU/SC/0067/1965 the Supreme Court has

observed as follows Cri LJ 438

Jurisdiction - The press has great powers in impressing the minds of the

people and it is essential that persons responsible for publishing anything

in newspapers should take good care before publishing anything which

tends to harm the reputation of a person. Reckless comments are to be

avoided. When one is proved to have made defamatory comments with

an ulterior motive and without the least justification motivated by self

interest. He deserves a deterrent sentence."

42. Considering the evidences on record and the above discussion it appears to

me that the news item so published in the daily newspaper Asomiya

Pratidin, specially news which are exhibited as Ext- 3 and Exhibit 4 are

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defamatory statement against the complainant and the accused is held

responsible for the defamatory news item.

43. The freedom of the journalist is an ordinary part of the freedom of the

subject, and to whatever lengths the subject in general may go, so also may

the journalist, but, apart from statute law, his privilege is no other and no

higher. The responsibilities which attach to this power in the dissemination

of printed matter may, and in the case of a conscientious journalist do,

make him more careful; but the range of his assertions, his criticisms, or his

comments, is as wide as, and no wider than, that of any other subject. No

privilege attaches to his position.

44. As the matter is of great public importance, it would, perhaps, be better to

quote the well-known passage of Lord Shaw in Arnold v. King Emperor

LR (1913-14) 41 Ind. App. 149 at 169.

The freedom of the journalist is an ordinary part of the freedom of the

subject, and to whatever lengths the subject in general may go, so also

may the journalist, but, apart from statute law, his privilege is no other

and no higher. The responsibilities which attach to this power in the

dissemination of printed matter may, and in the case of a conscientious

journalist do, make him more careful: but the range of his assertions, his

criticisms, or his comments, is as wide as, and no wider than, that of any

other subject. No privilege attaches to his position.

45. In the light of above discussion I therefore, come to conclusion that the

complainant is able to prove its case beyond all reasonable doubt. The

accused Surjya Kumar Bora is held guilty of offence u/s 500 IPC.

46. Considering the nature of offence I am not inclined to extend the benefit of

Probation of Offenders Act.

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47. The accused is convicted u/s 500 IPC and he is sentenced to undergo

Simple Imprisonment for 1 (one) month and shall also liable to pay fine of

Rs. 1000/- . In default to pay fine, further SI of 10 days.

48. The bailbond is extended till next 6 (six) months.

49. Let a free copy of judgment be furnished to the accused.

Given under my hand and seal of the Court

Date- 14th August 15

Place- Sivasagar (Rupak Rajak)

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ANNEXURE Prosecution Witnesses:- PW1. Ranjit Kr.Buragohain

PW2 . Manglu Majhi

PW3 . Majibur Hussain

PW4 . Pradip Chetia

Complainants Exhibits -

Exhibit 1:- News Paper dated 24-03-09




Exhibit 5:- Account Statement (allotment of SGRY Fund)

Accused Exhibits

Exhibit A:- Affidavit

Exhibit B:- Job card of Premkanta Tankbai

Exhibit C:- Deposition of PW1 Manglu Majhi

Exhibit D:- Letter issued by Bhaju Gaon Panchayat dated 13-04-09

Exhibit E:- Letter issued by Bhaju Gaon Panchayat dated 10-06-09

Exhibit F:- Letter issued by P.C Das dated 9-07-09

Exhibit G:- Letter issued by Block Development Officer, dated 17-8-09

Exhibit H:- Proceeding of Assam Information Commission

Exhibit I:- Photocopy of letter issued by president Charaideo Press Guild

(Rupak Rajak) Additional Chief Judicial Magistrate

Sivasagar

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