HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No.629/2007 Mr.Ashish Bagga s/o Mr.B.B. Bagga, r/o C-9, Cannaught Circus, New Delhi - 1.
1. State of Rajasthan through Secretary, Ministry of Home, Jaipur, Rajasthan.
2. Mahendra Kumar Tak s/o Ram Vilas Tak, 47, Jublee Chamber, Rajasthan High Court, Jodhpur, Rajasthan.
----Respondents S.B. Criminal Misc(Pet.) No.296/2007 Prabhu Chawla s/o Late J.R.Chawla, r/o E-16, Ansal Villa, Satbadi, New Delhi.
1. State of Rajasthan
2. Mahendra Kumar Tak, 47, Jubilee Chamber, Rajasthan High Court Compound, Jodhpur (Raj.).
----Respondents S.B. Criminal Misc(Pet.) No.441/2007
1. Manoj Verma aged 50 appx. S/o Sh. Dattreya Upasne.
2. Jagdish Upasane aged 30 appx. S/o Sh.Shyam Manohar Verma.
3. Ashok Kumar aged 50 appx. S/o Sh.Ramanand Prasad Registered address K-9, Cannaught Circus, New Delhi-1.
4. Farjand Ahamed aged 58 appx. S/o Sh.M.Valliullahkhan r/o 508, Kasmand Apartment, 2, Park Road, Hazratganj, Lucknow.
1. State of Rajasthan through Secretary, Ministry of Home, Jaipur, Rajasthan.
2. Mahendra Kumar Tak s/o Ram Vilas Tak, 47, Jublee Chamber, Rajasthan High Court, Jodhpur, Rajasthan.
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----Respondents _____________________________________________________ For Petitioner(s) : Mr.Paras Kuhad, Senior Advocate assisted by Mr.Vikas Balia, Mr.Sunil Mehta, Mr.Jayant Mohan, Mr.Pramod Vyas, Mr.Dinesh Pal Singh Dr.Punit Jain from India Today Group. For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
Mr.M.K.Tak, Mr.Yogesh Sharma _____________________________________________________ HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment Reserved on 23/03/2017 Pronounced on 19/06/2017 Reportable
1. Since all the three criminal misc. petitions under Section 482 Cr.P.C. have been filed for quashing of the order dated 30.11.2006 passed in Complaint No.1669/2006 pending before the Court of Additional Civil Judge and Judicial Magistrate, First Class No.III, Jodhpur, Rajasthan under Section 228A of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and the proceedings emanating therefrom, therefore, they have been heard together and are being disposed of by this common judgment.
2. All the petitioners are suffering impugned order taking cognizance on an application filed under Section 228A IPC, which prohibits disclosure of identity of the rape victim during trial.
3. Brief facts of the case, as noticed by this Court, are that on 01.06.2005, certain persons were convicted for the offence of rape against a German tourist by the learned Additional (3 of 37) [CRLMP-629/2007] Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.87/2005. On 30.03.2006, the India today Magazine published an Article titled as "Bharose Par Bhari Chot", which contained the name of the victim of the offence of rape i.e.the German tourist.
4. A complaint was filed by respondent No.2 on 03.04.2006, on which an FIR was lodged for the offence under Section 228A IPC with regard to publication of an Article in the India Today Magazine in Edition No.24 dated 30.03.2006 to 05.04.2006 on Page No.48 titled as "Bharose Par Bhari Chot". A written complaint was also filed being complaint No.1669/2006 before the learned Additional Civil Judge and Judicial Magistrate, First Class No.III, Jodhpur on account of the FIR not being lodged by the concerned police station. On 28.05.2006, the concerned court directed the Station House Officer of the concerned police station to make a detailed investigation in the matter. Meanwhile, a closure report was also filed on 12.10.2006 by the concerned Investigating Officer stating therein that the petitioners were not responsible for publication of the Article dated 05.04.2006 in Edition No.24 of the India Today Magazine, as the name of the victim was already there in the judgment rendered by the concerned Fast Track Court, Jodhpur, and therefore, since there was no element of secrecy, the offence was not constituted.
However, on 30.11.2006, the learned trial court took cognizance for the offence under Section 228A IPC against the petitioners and also issued bailable warrants to the tune of Rs.5,000/- against the petitioners, which was challenged by way of filing the present misc. petitions.
(4 of 37) [CRLMP-629/2007]
5. The matters were decided by a common order passed by a coordinate Bench of this Court on 02.04.2009, whereby the misc. petitions were held to be not maintainable, in view of the judgment rendered by the Rajasthan High Court in Sanjay Bhandari Vs. State of Rajasthan, reported in 2009(1) Cr.L.R. (Raj.) 282, which clearly held that availability of alternative remedy of criminal revision under Section 397 Cr.P.C.
was a ground to dismiss the petition under Section 482 Cr.P.C.
6. The Hon'ble Supreme Court, on 05.09.2016, while hearing Criminal Appeal No.842 of 2016 arising out of SLP (Cri.) No.3314/2009 and other analogous matters, held that the impugned order passed by the Rajasthan High Court was contrary to law, and therefore, these were fit cases to be remanded back, and thus, set aside the aforementioned order dated 02.04.2009 remitting the matter back for fresh hearing of the petitions under Section 482 Cr.P.C. with request to hear and decide the matters expeditiously, preferably within a period of six months. The matters were accordingly finally heard by this Court.
7. Learned Senior Counsel for the petitioners, Mr.Paras Kuhad assisted by learned counsel Mr.Vikas Balia and others made a submission that the reporting so made was a bonafide reporting of a widely covered matter and the name of the victim, for the first time, was taken from the aforementioned judgment of the Fast Track Court pronounced on 01.06.2005. The statement was made that the disclosure of the identity was mentioned nine months after completion of the trial, and hence, it was not an (5 of 37) [CRLMP-629/2007] ongoing proceeding or investigation, so as to fall within the ambit of Section 228A IPC.
8. As per the submissions of the learned Senior Counsel for the petitioners, Section 228A IPC is restrictive in relation to the proceedings going on before the court, and once the proceeding or investigation comes to an end, Section 228A IPC would not be attracted. It is also submitted that the expression "alleged or found to have been committed" used in sub-section (1) of Section 228A IPC also is in relation to a pending proceeding. It is further submitted that the jurisprudence of the precedent law laid down by the Hon'ble Apex Court in State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384 was that the victim should be comfortable and anonymity should be maintained throughout the proceedings, but the same did not mean, 'after the judgment'. The point raised by the learned Senior Counsel for the petitioners was that the judgments were already in the public domain and nobody could have been punished for publishing any part of the judgment of the court.
9. Learned Senior Counsel for the petitioners also brought to the notice of this Court that the victim was a foreign lady and had voluntarily given her interview to several Newspapers and members of Electronic Media without concealing her own identity, and since the social object of the statutory provision was no more operative, therefore, the present provision of law is not attracted in the given facts and circumstances of the case.
10. Learned Senior Counsel for the petitioners also argued that as per the provision of sub-section (2) of Section 327 Code of (6 of 37) [CRLMP-629/2007] Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), until the proceedings were declared to be in camera trial and the audience were excluded expressly, language of Section 327 would not be attracted. He has further pointed out that in this case, in camera trial was never declared and the audience were never excluded, so as to make it fall within the shield of sub-section (2) of Section 327 Cr.P.C.
11. Learned Senior Counsel for the petitioners reiterated that the word "proceedings" mentioned in sub-section (3) of Section 327 Cr.P.C. were meant to be only during the investigation and during the trial and shall not operate when the trial or investigation was over and the judgment was pronounced, and the proceedings were no more continuing.
12. Learned Senior Counsel for the petitioners referred to the Eighty-Fourth Report of the Law Commission of India on Rape and Allied Offences : Some Questions of Substantive Law, Procedure and Evidence. The more specific reference was made of Chapter 5, which deals with the procedure for trial, including trial in camera and publication of court proceedings.
13. Learned Senior Counsel for the petitioners has referred to paras 5.5 to 5.17 of the said Report, which are as follows:-
III. Trial in Camera Trial in 5.5 There is, however, one matter of procedure Camera -
Section in regard to which there is scope for reform. A 327, Cr.P.C.
trial for rape, like other criminal trials, is, in (7 of 37) [CRLMP-629/2007] general, conducted in public. This is in accordance with the statutory provision in the Code of Criminal Procedure on the subject.
The reasons why trials are held in pubic (subject to specific statutory exceptions) have been discussed judicially and otherwise, more than once, and we need not set them out.
However, in the case of sexual offences, there is an overriding consideration which justifies an exception being made to the general rule of public trial. Certain details of an intimate character may have to be narrated in court in such trials. It is not only embarrassing for the victim to narrate them in the full glare of publicity. Often, by reason of such embarrassment, shy may not be able to give all the factual details, and the cause of justice may ultimately suffer. It is, therefore, on the wider ground of interest of justice, that we would recommend that in the absence of special reasons to be recorded by the Court, a trial for rape or allied offences must be held in camera.
5.6 We may state that the broad principle of publicity can be modified where the Court thinks Need to modify that justice could not be done at all if it had to general rule.
be done in public.
The proposition that 'where secrecy begins justice ends' is one held by most lawyers as sacred. However, in the area of rape, and indeed (8 of 37) [CRLMP-629/2007] of all the serious sexual offences, there is a particular burden on the complainant and on the accused with the real risk of courtroom defamation repeated in the press, which may subsequently be found by the Court to be totally unjustifiable.
It is for this reason that in England, the National Council for Civil Liberties' in their pamphlet on The Rape Controversy, said -
"The law should recognize the fact that there is still a stigma attached to rape from which the victims may suffer for years afterwards."
We would wish to extent this view to include the stigma that may attach itself to the accused for years afterwards even following an acquittal. In this context, it should be remembered that the making of an allegation of rape against any man imposes upon him an equally unpleasant, humiliating and embarrassing experience in respect of which he should be entitled to the same protection as may be accorded to the alleged victim.
5.7. In the light of the above discussion, a specific proviso should be added to section 327 Recomme of the Code of Criminal Procedure, as under:- ndation to amend Proviso to be added to section 327 of the section 327, Code of Criminal Procedure, 1973. Cr.P.C.
(9 of 37) [CRLMP-629/2007] "Provided further that unless the presiding judge or magistrate, for reason to be recorded directs otherwise, the inquiry into and trial of rape or allied offence shall be conducted in camera.
Explanation - In this Sub-section, the expression 'rape or allied offence' applies to-
(c) an attempt to commit, abetment of or conspiracy to commit any such offence as is mentioned in clause (a) or (b) of this Explanation."
Further, the following Sub-section should be added to section 327:-
Sub-section to be added to section 327, code of Criminal Procedure, 1973 after re-
numbering present section as sub-section (1).
"(2) Where any proceedings are held in camera, it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except with the previous permission of the Court."
(10 of 37) [CRLMP-629/2007] IV. Publication of proceedings Publication 5.8 Connected with the question of holding of names of the proceedings in camera is that of publication parties. of the names of the victim and the accused in cases of charges of rape.
As the law stands at present, the names and details of the victim as well as the accused as disclosed at a trial for a sexual offence can be legally published in the press, unless the proceedings were held in camera. This is in view of the general rule about the reporting of judicial proceedings. What takes place in the Court is public, and the publication of proceedings merely enlarges the area of the Court and gives to the trial that added publicity which is favoured by the rule that the trial should be open and public. It is only when the public is excluded from audience that the privilege of publication also goes, "because then the public would have no right to obtain at the second hand what it cannot obtain at first hand".
Special 5.9 This general rule, however, sometimes Provisions causes embarrassment. Realising the need for modification of the general position, the legislature has enacted, in regard to proceedings of a special nature, special rules on the subject. We need not enumerate here Central Acts and a few State Acts that contain such provisions.
5.10 On a careful consideration, we are of Preserving the opinion that here is need for legislation to anonymity preserve the anonymity of the complainant and the accused in the case of rape and allied of complainan offences (subject to exceptions in regard to certain specified cases).
t and accused in The principal object of the amendment sexual would be to save avoidable embarrassment to offences. the victim and to the accused. The justification for such a provision need not be spelt out. Restrictions on the reporting of judicial proceedings are not unknown to our law, though such restrictions should be imposed only for the weightiest reason. The present seems to be such a case.
(11 of 37) [CRLMP-629/2007] 5.11 We have considered the question of Anonymity anonymity under two heads :- at the stage of (I) anonymity of the victim and the accused investigation at the stage of investigation and before the trial commences;
(ii) anonymity of the victim and the accused as regards proceedings in Court at the trial stage.
As regards the stage of investigation, we do not propose to make any recommendations for statutory amendments or for the enactment of separate legislation. Though we do appreciate that the victim and the members of her family find it embarrassing that the name of the victim is given publicity, we would leave the matter to the good sense of the journalistic profession -
5.12 As regards anonymity at the stage of trial, some special provisions are, in our view, Publicity at called for. Here again, we do not propose the the stage of Trial in enactment of separate legislation. We have camera and penalty for commended that the trial of cases relating to illegal publicity to rape (and allied offences) should be held in court proceedings camera. On the enactment of such a provision, the publi8ication (without permission of the Court) of proceedings so held in camera would be a contempt of Court, for which the High Court can take appropriate action.
(12 of 37) [CRLMP-629/2007] Section 5.13 However, to fortify the present law, we 228A, IPC (New) recommend that there should be inserted, in the recommend Indian Penal Code, a new section - say, as ed.
section 228A - in the following terms :-
(To be inserted) "228A. Where, by any enactment for the time being in force, the printing or publication of any matter in relation to a proceeding held in a Court in Camera is declared to be unlawful, any person who prints or publishes any matter in violation of such prohibition shall be punished Consequential amendment with fine which may extent to rupees one of other laws.
5.14 The proposed provision will cover every case of violation of any statutory provision which declares unlawful the printing or publication of such matter. If our recommendation is accepted, Publication it will be possible to delete, at a convenient after time, similar provisions in special enactments so conviction as to prevent duplication.
5.15. We may make it clear that publication of the name of the convict as a punishment is a matter which will be dealt with later.
(13 of 37) [CRLMP-629/2007] V. Examination on commission 5.16. A suggestion was made by some of the representatives of women's organizations (during our oral discussions with them) that women should be examined Examination on commission and should not be made to come to Court on (in criminal case). We have carefully considered the commission matter, but we do not consider any such statutory provision to be practicable.
In Important cases, so many persons (and not merely the judge) have to take part in the trial. Moreover, the accused may have to be identified, or the property in dispute may have to be shown to the witness. All these arrangements cannot, in many cases, be made when the examination is on commission.
5.17. The issue of a commission is generally a time- consuming process. Save in exceptional cases of hardship and the like, the procedure of examination on commission may, if made mandatory by law, be productive of injustice in most cases.
If the object is to have embarrassment, that object would amply be secured by holding the trial in camera, as recommended by us.
We are not, therefore, in a position to accept the suggestion.
14. Learned Senior Counsel for the petitioners pointed out that the Law Commission of India in fact meant to allow the publication of the proceedings with permission of the court and as a general rule for general offences, the publicity was to create awareness amongst the public. Para 5.11 of the Report deals with anonymity at the stage of investigation. Learned Senior Counsel for the petitioners thus, was trying to submit that in the present case, the legislative intention and the foundation of the law, shows that the ambit of Section 327 Cr.P.C. could not extend to the present facts and circumstances of the case, as name of the victim was already there in the public domain by virtue of being mentioned in the judgment, which was later on published and the (14 of 37) [CRLMP-629/2007] stage of investigation and trial proceedings was over. Apart from the fact that the proceedings have to be specifically held in camera, in case there was any violation, then as per para 5.12 of the Report, then the proceedings for contempt of court can be initiated by the High Court.
15. Learned Senior Counsel for the petitioners has placed reliance on Suo Moto Vs. State of Rajasthan, reported in RLW 2005 (2) Raj. 1385, in which the name of the lady was already published in the judgment of the Hon'ble High Court.
16. Reliance has also been placed by the learned Senior Counsel for the petitioners on HDFC Securities Ltd. Vs. State of Maharashtra, reported in (2017) 1 SCC 640, wherein various factors have been laid down by the Hon'ble Apex Court, which have to be considered, while the cognizance was taken by the concerned court. Relevant paras 18, 20 and 24 of the said judgment, read as under:-
"18. The learned counsel for the appellants further relied upon few more judgments wherein it was well settled that the test to be applied for quashing is :
whether uncontroverted allegations made, prima facie establish the offence? This is because the court cannot be utilized for any oblique purose and where, in the opinion of the court, the chances of an ultimate conviction are bleak, no useful purpose will be served by allowing the criminal prosecution to continue. He relied upon the decisions of this Court in Madhava Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, SCC paras 7-8; State of Haryana v. Bhajan Lal, SCC para 102, Rajiv Thapar v. Madan Lal Kapoor, SCC at para 30 and Rishipal (15 of 37) [CRLMP-629/2007] Singh v. State of U.P., SCC at paras 12-13.
20. Learned Counsel for the Respondents have not rebutted this issue in any of his arguments. With the meticulous understanding of the orders of the Courts below in the instant case, we can see that general and bald allegations are made in the context of Appellant No. 1 who is a juristic person and not a natural person. The Indian Penal Code, 1860, does not provide for vicarious liability for any offence alleged to be committed by a company. If and when a statue contemplates creation of such a legal fiction, it provides specifically therefor, e.g. Negotiable Instruments Act, 1881. Further, reliance was made on S.K. Alagh v. State of Uttar Pradesh and Ors., reported in (2008) 5 SCC 662, where at paragraph 16, this Court observed that "Indian Penal Code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence." Further in Maksud Saiyed v. State of Gujarat and Ors., reported in : (2008) 5 SCC 668, at paragraph 13, this Court observed that where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The Learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the Respondents herein were personally liable for any offence. The Bank is a body corporate.
(16 of 37) [CRLMP-629/2007] Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liability. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.
24. Per contra, learned Counsel for Respondent No. 2 submitted that the complaint has disclosed the commission of an offence which is cognizable in nature and in the light of Lalitha Kumari's Case, (supra), registration of FIR becomes mandatory. We observe that it is clear from the use of the words "may take cognizance" in the context in which they occur, that the same cannot be equated with "must take cognizance". The word "may" gives discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and that the forwarding of the complaint to the police for investigation Under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter, which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. It is settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, do not disclose the commission of an offence."
17. Learned Senior Counsel for the petitioners has also placed reliance on Mehmood Ul Rehman Vs. Khazir Mohammad Tunda & Ors., reported in (2015) 12 SCC 420, (17 of 37) [CRLMP-629/2007] wherein the Hon'ble Apex Court has laid down the mechanism for issuance of the process of cognizance.
18. Learned Senior Counsel for the petitioners has also cited the precedent law laid down by the Hon'ble Apex Court in S.R.Surukumar Vs. S. Sunaad Raghuram, reported in (2015) 9 SCC 609, whereby foundation of a cognizance order by a magistrate was laid down by the Hon'ble Apex Court.
19. Learned Senior Counsel for the petitioners has further placed reliance on Sunil Bharti Mittal Vs. Central Bureau of Investigation, report in (2015) 4 SCC 609, whereby the Hon'ble Apex Court has held that application of mind by the concerned magistrate was to be reflected to establish a prima facie case for cognizance.
20. Reliance has also been placed by the learned Senior Counsel for the petitioners on Dinesh alias Buddha Vs. State of Rajasthan, reported in (2006) 3 SCC 771, whereby the Hon'ble Apex Court has laid down the law that the High Court or the lower court should not indicate the name of the victim in the judgment.
21. Learned Senior Counsel for the petitioners also tried to make out a case on the basis of the aforesaid precedent law that at the stage of cognizance, sufficient application of mind was not made by the concerned court and also the facets that once the name was already there within the public domain on account of the same being there in the judgment already pronounced/printed, then the right of privacy had in fact come to an end.
(18 of 37) [CRLMP-629/2007]
22. Learned Senior Counsel for the petitioners also argued that Section 228A (2)(b) authorizes the victim to give her name, and thus, the interviews given by the victim herself in relation to the present case amounted to such deemed authorization by her.
Learned Senior Counsel for the petitioners also stated that as per Section 228A(1) IPC, any person who makes known the identity of a person against whom the sexual offence has been committed, shall come within the ambit of Section 228A IPC, whereas in the present case, the identity of the victim was already disclosed in the judgment prior to its publication and printing.
23. Learned Senior Counsel for the petitioners has also submitted that in the present case, as per Section 44 IPC, the injury has not been caused to the present respondents, and therefore, the present complainant does not have a locus standi as defined in Section 2(d) of Cr.P.C. to prefer the present complaint.
24. Learned counsel for the respondents, Mr.M.K.Tak and Mr.Yogesh Sharma have stated that a bare reading of the statutory provisions of Section 327 Cr.P.C. and Section 228A IPC clearly constitute a prima facie justification for passing cognizance order against the petitioners.
25. Learned counsel for the respondents have pointed out from the statements of Manoj Verma and Chand Prakash Sharma that so far as mentioning of the name of the victim in the India Today Magazine was a mere coincidence and was a bonafide reporting and was not done to cause any prejudice to any person is concerned, the statements were given before the police, which are also on record. It has also been pointed out that the report of (19 of 37) [CRLMP-629/2007] the Station House Officer of Police Station, Udaimandir, Jodhpur is also on record, which was to the effect that mentioning of the name of the victim was a mere coincidence and since it did not have ill intention or did not cause any prejudice to the victim, therefore, no offence was made out, is contrary to the basic spirit of the statutory provision of Section 327 Cr.P.C. and Section 228A IPC.
26. Learned counsel for the respondents also defended the impugned order dated 30.11.2006 passed by the learned court below. Learned counsel for the respondents pointed out that it was an established fact that printing or publication has been made in the India Today Magazine in its Edition No.24 dated 30.03.2006 to 05.04.2006 on Page No.48 titled as "Bharose Par Bhari Chot". It has also been submitted that the learned court below has taken note of the fact that once it is established that the Article has been published and printed contrary to the spirit of the statutory bar under the law and the same has been accepted by the responsible persons of the India Today Group, who have merely tendered an apology and have pointed out a non-prejudicial coincidence being a reason for such publication, the written apology given by Prabhu Chawla and Manoj Verma was also properly dealt with by the learned court below and the same was found to be not absolving the present petitioners from the ambit of the offences.
27. Learned counsel for the respondents also argued that the proceedings, including the purport of Section 327 Cr.P.C. is not restricted to the ongoing investigation and trial, which is to create a perpetual bar on disclosure of the name of the victim coming (20 of 37) [CRLMP-629/2007] into the public domain so as to avoid humiliation and embarrassment. Learned counsel for the respondents also stated that the trial was not required to be declared to be in camera and in fact there was a deemed purport of the language of sub-section (2) of Section 327 Cr.P.C. that the trial for the offences under Sections 376, 376A, 376B, 376C, 376D or 376E IPC were to be conducted in camera.
28. It is also submitted by the learned counsel for the respondents that printing and publication of the judgments do not mean that the name of the victim can be given in an article. It only means that if the law report is published and if by the way the same carries the original text of the judgment of a court, which includes the name of the victim, then it shall not amount to any offence nor the publisher shall be held responsible for the same.
29. Learned counsel for the respondents also submitted that the judgments cited by the learned Senior Counsel for the petitioners on the issue cognizance are not applicable in the present case, as a bare perusal of Section 327 Cr.P.C. and Section 228A IPC establishes a prima facie case for taking cognizance has been made out and once such case has been found to be made out, then it is the duty of the court below to have taken cognizance in the matter.
30. Learned counsel for the respondents have further stated that even if the name of the victim was already there in the judgment, and even though it should have been avoided, then also it would not create such widespread impact as the publication (21 of 37) [CRLMP-629/2007] and printing in media would create. Learned counsel for the respondents however, submitted that the media had to be responsible, as it is having more power and more impact as far as creating awareness amongst the public at large is concerned.
31. Learned counsel for the respondents also submitted that the issue of locus standi under Section 44 IPC was not there, as the injury was very much there within the ambit of Section 44 IPC and the complaint could be filed by any person and the complainant being any person could have filed the same as the offence being of cognizable nature, and therefore, there was no question of locus standi, which could arise in the present set of facts and circumstances at this stage.
32. Learned counsel for the respondents have also stated that the publication in the present case cannot be compared with the publication of a normal offence, as in the present case, the victim has been subjected to extreme humiliation and embarrassment on account of disclosure of her identity in the media.
33. Learned counsel for the respondents while pointing out the wider liability arising from Press and Registration of Books Act (25 of 1867) has referred to the judgment of the Hon'ble Apex Court in K.M.Mathew Vs. K.A. Abraham & Ors., reported in 2002 AIR SCW 3500. The entire judgment rendered in the said case reads as under:-"1. Leave granted.
2. Common questions of law arise in these appeals; hence they are being disposed of by this (22 of 37) [CRLMP-629/2007] common judgment. Appellants are either Managing Editor, Chief Editor or Resident Editor of their respective newspaper publications. Separate criminal complaints were filed against the appellants alleging that in their newspaper publications, libellous matter was published and that these appellants had knowledge and they were responsible for such publication and thus they committed the offence of defamation besides other allied offences. In all these cases, the Magistrate had taken cognizance of the offences and issued summons to these appellants. The appellants challenged their prosecution and contended that in view of Section 7 of the Press & Registration of Books Act, 1867 (hereinafter referred to as "the Act"), they are not liable to be prosecuted and that the Editor of the newspaper whose name is printed on it as the "Editor" of that publication alone is liable to be prosecuted for any of the offence for such libellous publication.
3. The appellant in Criminal Appeal No. 701 of 1998 is the Chief Editor of "Malayalam Manorma", a daily having wide circulation in Kerala and other places. According to the appellant in this case, he is the Chief Editor of the "Malayalam Manorma" and that there is also an Editor for this publication who alone can be charged for the offence under Section 500of Indian Penal Code in view of the statutory presumption under Section 7 of the Act.
4. In Criminal Appeal arising out of S.L.P. (Crl.) No. 399 of 2001, the appellant is the Managing Editor of Indian Express, Jansatta and Financial Express and certain other publications. A criminal complaint was filed against the appellant and others alleging that on 21st January, 1992 a news item was published in "Jansatta" which, according to the complainant, was defamatory and thus the appellant had committed the offence under Section 500 IPC. The complaint was filed before the Judicial Magistrate, Kota in Rajasthan.
5. The appellant in the Criminal Appeal arising out of S.L.P. (Crl.) No. 520 of 2000 was the Resident Editor of a daily, namely, "Hindustan", and the (23 of 37) [CRLMP-629/2007] complainant therein alleged that some articles published on 7.12.1986 and 8.12.1986 in that newspaper ("Hindustan") were defamatory and thereby the appellant committed offence under Section 500 IPC.
6. In all these cases, the respective Magistrate took cognizance of the offence alleged in the complaint and issued process to the appellants and the appellants filed petitions under Section 482 of the Code of Criminal Procedure for quashing the proceedings on the ground that they are not liable to be prosecuted for the offence of defamation for the alleged libellous publication as they are not the Editors of such publications. The plea raised by the appellants was not accepted by the High Courts and the impugned orders passed in those proceedings are challenged before us.
7. We have heard learned counsel for the appellants as well as counsel for the respondents. As noticed earlier, the contention of the appellants is that in view of Section 7 of the Act, there cannot be any prima facie case against the appellants and the Editor whose name is printed in such publications alone can be prosecuted.
"7. Office copy of declaration to be prima facie evidence.In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be, that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in (24 of 37) [CRLMP-629/2007] the declaration, or the editor of every portion of that issue of the newspaper of which a copy is produced."
9. The expression "Editor" has also been defined in Section 1 of the Act as under :
" 'Editor' means the person who controls the selection of the matter that is published in a newspaper."
It is also relevant to quote Section 5(1) of the Act :
"5. Rules as to publication of newspapers. No newspaper shall be published in India, except in conformity with the rules hereinafter laid down:
(1) Without prejudice to the provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication.
(2) . . . . . . . ."
10.The preamble to the Act says that it is expedient to provide for the regulation of printing presses and of newspapers, for the preservation of copies of every book and newspaper printed in India and for the registration of such books and newspapers.
11.Section 5 of the Act prescribes certain rules regarding the publication of newspapers. It says that the newspaper shall contain the names of the owner and editor printed clearly on each copy and also the date of its publication. Sub- section (2) of Section 5 further says that the printer and the publisher of every such newspaper shall appear in person before the District, Presidency or Sub- divisional Magistrate and shall make a declaration that he was the printer or publisher or printer and publisher of that newspaper.
12.It is also pertinent to note that Section 8A of the Act provides that if any person, whose name has appeared as editor on a copy of a newspaper, may, within two weeks of his becoming aware that his name has been so published, appear before the (25 of 37) [CRLMP-629/2007] District Magistrate and make a declaration that his name was incorrectly published in that issue as the editor thereof, and the Magistrate empowered in that behalf may conduct an inquiry and on such inquiry if it is found that the said person is not the editor of the newspaper, the Magistrate may issue a certificate to the effect that Section 7 will not apply to him.
13.A conjoint reading of these provisions will go to show that in the case of publication of any newspaper, each copy of the publication shall contain the names of the owner and the editor who have printed and published that newspaper. Under Section 7 of the Act, there is a presumption that the Editor whose name is printed in the newspaper as Editor shall be held to be the Editor in any civil or criminal proceedings in respect of that publication and the production of a copy of the newspaper containing his name printed thereon as Editor shall be deemed to be sufficient evidence to prove that fact, and as the 'Editor' has been defined as the person who controls the selection of the matter that is published in a newspaper, the presumption would go to the extent of holding that he was the person who controlled the selection of the matter that was published in the newspaper. But at the same time, this presumption contained in Section 7 is a rebuttable presumption and it will be deemed as sufficient evidence unless the contrary is proved. Therefore, it is clear that even if a person's name is printed as Editor in the newspaper, he can still show that he was not really the Editor and had no control over the selection of the matter that was published in the newspaper.Section 7 only enables the court to draw a presumption that the person whose name was printed as Editor was the Editor of such newspaper, if the publication produced in the court shows to that effect.
14.The contention of the appellants in these cases is that they had not been shown as Editors in these publications and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as 'Editor' and there (26 of 37) [CRLMP-629/2007] cannot be any criminal prosecution against them for the alleged libellous publication of any matter in that newspaper.
15.The contention of these appellants is not tenable. There is no statutory immunity against Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. In all these cases, the complainants have specifically alleged that these appellants had knowledge of the publication of the alleged defamatory matter and they were responsible for such publication; and the Magistrates who had taken cognizance of the offence held that there was prima facie case against these appellants. It was under such circumstances that the summonses were issued against these appellants.
16.Counsel for the appellants relied on certain decisions to contend for the position that under Section 7 of the Act, Editor alone shall be prosecuted for the publication of any defamatory matter in a newspaper. One of the earliest decisions relied upon is State of Maharashtra vs. Dr. R.B. Chowdhary & Ors. (1967) 3 SCR 708. This was a case where the complaint was filed under Section 500 IPC against four persons who were members of the Editorial Board of a Marathi daily. The Addl. Sessions Judge held that there was a prima facie case against Respondents 2, 3 and 4, who were members of the Editorial Board and that they were the makers of the alleged article published in the daily. These respondents contended that the Editor was one Madane and when he was questioned under Section 342 Cr.P.C., he unequivocally admitted that he had written the defamatory article and his name was shown as the Editor in the declaration made under Section 5 of the Act. Under such circumstances, the court held that though the statement of Madane under Section 342 was no evidence against these respondents as Madane alone was shown as Editor, no presumption could be drawn against Respondents 2, 3 and 4. We do (27 of 37) [CRLMP-629/2007] not think that this decision has any application to the facts of the present case as the decision turned mainly on the point that the Editor had admitted the fact that he was responsible for the publication.
17.The next case relied upon is Haji C.H.
Muthukoya (1979) 1 SCR 664. This case arose out of an election petition. The election of the appellant to the legislative assembly was set aside on the ground of corrupt practices. The allegation against the appellant was that he was the Chief Editor of a Malayalam daily newspaper, by name, "Chandrika" in which certain articles and cartoons were published which were intended to create hatred between two classes of citizens and thus committed corrupt practices. It was noted by the court that one Aboobaker was the printer, publisher and editor of "Chandrika" and in the election petition there was no averment to the effect that the appellant controlled the selection of the matter that was published in the newspaper. It was in this background that the court held that the appellant was not the Editor of the newspaper and the presumption under Section 7 of the Act could be drawn only against the person who was the Editor within the meaning of the Act and that there was no justification to draw the presumption against the appellant who was the Chief Editor. This decision also is of no help to the appellants to contend for the position that the appellants cannot be prosecuted for the alleged offence committed in respect of publication in these newspapers.
18.Another decision relied upon is K.M. Mathew vs. State of Kerala & Anr. (1992) 1 SCC 217. Here the accused was the Chief Editor and in the complaint against him there was no averment except the motive attributed to him. That too was of general nature. This Court held that the appellant who was the Chief Editor of the daily newspaper in question was responsible for the general policy of that daily and as the complaint did not contain any positive averments as to the knowledge of the Chief Editor about the objectionable character of the matter, (28 of 37) [CRLMP-629/2007] the Chief Editor could not be proceeded against. Like the first two decisions relied upon by the appellants, this decision also is of no assistance to them.
19.The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper.
20.It is true that judicial process should not be an instrument of oppression or needless harassment and the Magistrate while taking cognizance should be satisfied that there is a prima facie case against the accused and at that he should be circumspect and judicious in exercising discretion and should take all relevant facts into consideration before issuing process and that vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice and it shall not be the means to wreak vengeance, but, at the same time, "the inherent power of the court under Section 482 Cr.P.C. should be very sparingly and cautiously used and only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. "So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the (29 of 37) [CRLMP-629/2007] offence alleged. At that stage, it is not open either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out." [See : State of Bihar vs. Rajendra Agrawalla (1996) 8 SCC 164.
"Unless grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind the principle behind Section 465 Cr.P.C.. Any or every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Frequent interference by superior courts at the interlocutory stage tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system." [See: Santosh De & Anr. vs. Archna Gupta & Ors. (1994) 2 SCC 420.
21.In the instant appeals, the complainant in each case has alleged that these appellants who are either Managing Editor, Chief Editor or Resident Editor had knowledge and were responsible for publishing defamatory matter in their respective newspaper publications. Moreover, in none of these cases, the 'Editor' had come forward and pleaded guilty to the effect that he was the person responsible for selecting the alleged defamatory matter published. It is a matter of evidence in each case. If the complaint is allowed to proceed only against the 'Editor' whose name is printed in the newspaper against whom there is a statutory presumption under Section 7 of the Act, and in case such 'Editor' succeeds in proving that he was not the 'Editor' having control over the selection of the alleged libellous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprit. We are not unmindful of the powers of the Court under Section 319 of the Code of (30 of 37) [CRLMP-629/2007] Criminal Procedure, but such powers are circumscribed by limitations.
22.We do not find any convincing reasons to quash the proceedings initiated against these appellants and the Criminal Appeals are devoid of merits. They are dismissed and the proceedings initiated against the appellants be continued in accordance with law."
34. I have heard the learned counsel for the parties as well as perused the record of the case alongwith the precedent laws cited at the Bar.
35. Section 327 Cr.P.C. reads as under:-
"327. Court to be open.
(1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in sub- section (1), he inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in camera:
Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court.
(31 of 37) [CRLMP-629/2007] Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.
(3) Where any proceedings are held under sub- section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court.
Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties."
36. Section 228A IPC reads as under:-
"228A. Disclosure of identity of the victim of certain offences etc.(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is--
(a) by or under the order in writing of the officer-in- charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound (32 of 37) [CRLMP-629/2007] mind, by, or with the authorisation in writing of, the next of kin of the victim:
Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.
Explanation.--For the purposes of this sub- section, "recognised welfare institution or organisation" means a social welfare institution or organisation recognised in this behalf by the Central or State Government.
(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Explanation.--The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.]"
37. This Court is thus of the opinion that the purport of Section 327 Cr.P.C. is to declare illegality in any of the printing or publication of any matter in relation to the proceedings except with previous permission of the court regarding the offences under Sections 376, 376A, 376B, 376C, 376D or 376E IPC. Thus, on a bare reading of the provision of Section 327(3) Cr.P.C., it becomes clear that in the present case, an illegality has been committed, as the very purpose of enacting such law by the legislature was to protect the victim of sexual offence against the extreme (33 of 37) [CRLMP-629/2007] humiliation and embarrassment. There is no exception to Section 327(3) Cr.P.C. and printing and publication in the present case cannot be compared with the printing and publication of the judgments, as printing and publication of the judgments is a matter of record, which remains within the ambit of matured legal fraternity and would not be disclosed, until someone specifically goes for it. In case of printing and publication in the media, the same is to be consumed by an ordinary citizen, and thus, the embargo created under Section 327 Cr.P.C. ought to be strictly maintained, so as to ensure that the purpose of protecting the identity of the victim of sexual offence is fully served.
38. The purport of Section 228A IPC is to punish a person or persons, who prints or publishes the name of a person against whom the offence under Sections 376, 376A, 376B, 376C, 376D or 376E IPC is alleged or found to have been committed and the exceptions are only the victim herself or her authorized representatives or the authorities, who would be officially discharging their duties. The Explanation would be of no use to the petitioners in this case, as printing and publication of the judgment is something else and printing and publication of the name of the victim of sexual offence in an article published in a popular magazine is something else.
39. On a careful perusal of the precedent laws, this Court finds that cognizance can be taken by the concerned court, if it finds that a prima facie case has been made out, and in this case, the learned court below has rightly taken cognizance, after the apology tendered by Prabhu Chawla and Manoj Verma, and also a (34 of 37) [CRLMP-629/2007] bare perusal of the Article as published in Edition No.24 dated 30.03.2006 to 05.04.2006 at Page No.48 titled as "Bharose Par Bhari Chot", clearly reveals that Section 327 Cr.P.C. and Section 228A IPC are broadly attracted in the present case. The aforementioned Report of the Law Commission of India, as discussed and reproduced, is in fact in furtherance of the earlier laws pertaining to the trial in camera, and more particularly, the portion reproduced hereinabove deals with the trial for sexual offence, where a delicate and sensitive situation is there and the publication thereof is likely to cause far-reaching consequences upon the victim of sexual offence, and therefore, the purport of the Report of the Law Commission of India is to impress upon the law-framers to consider the enactment of special law for protection of such women, and in case any technicality is allowed in relation to disclosure of identity of the victim, then the very purpose of enactment of such law shall be frustrated.
40. This Court does not wish to go into the fact as to whether mentioning of the name of the victim was correct by the learned trial court and the Hon'ble High Court, as the same has been dealt with by the Hon'ble Apex Court in the aforementioned precedent laws and the situation is amply clear that such mentioning of the name has to be avoided. But certainly, such reporting in media has wider and far-reaching consequences upon the public at large and it creates an immense ripple in the society.
The justification given by the petitioners that the name of the victim was already there in the public domain cannot be accepted, as according to Section 327 Cr.P.C. and Section 228A IPC, with (35 of 37) [CRLMP-629/2007] particular reference to such illegality, the publication and printing in the ambit shall have a connotation, which has to be strict, so as to protect the dignity and confidentiality of the victim suffering such humiliating crime.
41. This Court is thus of the opinion that the locus standi was very well available with the complainant, as any person can lodge a complaint in case of cognizable offence. Thus, the respondents were very well entitled to make such complaint in larger interest of the society.
42. This Court also takes note of the judgment cited by the by the learned Senior Counsel for the petitioners rendered by the Madras High Court in the case of National Federation of Indian Women Vs. Government of Tamil Nadu, reported in 2007 Cri.L.J. 3385, which though goes against the petitioners, but has been fairly cited. Relevant para 8 of the said judgment reads as under:-
"8. In "Dinesh alias Buddha v. State of Rajasthan MANU/SC/8078/2006 the Hon'ble Supreme Court, while dealing with a case in which, the accused was alleged to have committed rape on an eight year old girl, had an occasion to deal with the issue regarding restriction in printing and publishing the name or any matter which may make known the identity of a person against whom a sexual offence is alleged or found to have been committed. It is held in para 7 as under:
"7. ...Section 228-A, I. P. C. makes disclosure of the identity of the victim of certain offences punishable. Printing or publishing the name or any matter which may make known the identity of any (36 of 37) [CRLMP-629/2007] person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished...."
Therefore, in order to not to make known the identity of the person against whom a sexual offence is alleged or found to have been committed and having regard to Section 228-A, I. P. C, the Courts including the Hon'ble Supreme Court felt it appropriate not to indicate the name of the victim even in the judgments though the restriction does not relate to printing or publication of judgment by them and instead of indicating the victim by name, the Courts would choose to describe her as 'victim'. Therefore, when Section 228-A, I. P. C. has been enacted keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence, publishing the photographs of such victims in newspapers, journals and magazines would certainly fall under the category of making disclosure of the identity of the victim and thereby such act would fall under Section 228-A, I. P. C. Therefore, if the petitioner comes to the knowledge of such publication of photographs of the victims of sexual offence in newspaper, journals magazines, or electric media, the petitioner can very well invoke the above said provision or can bring to the knowledge of the Police Officials and see that the concerned should be punished."
43. The learned trial court has passed a reasoned order, whereby it has rightly dealt with the provisions of Section 327 Cr.P.C. and Section 228A IPC and after dealing with the aspect of printing and publication of the name of the victim in the case (37 of 37) [CRLMP-629/2007] concerned has rightly taken cognizance while ignoring the impact of apology tendered by Prabhu Chawla and Manoj Verma as being inconsequential to the offences committed under Section 228A IPC and illegality defined under Section 327 Cr.P.C.
44. This Court while looking into the precedent law laid down in State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors., reported in 1992 Supp.(1) SCC 335 and others judgments finds that the present cases do not call for any invocation of the inherent powers under Section 482 Cr.P.C. or any interference is required to secure the ends of justice.
45. In light of the aforesaid discussion, the present petitions are dismissed.
(DR. PUSHPENDRA SINGH BHATI)J.