Partly allowed

M/S Public Tv v. Mr D Lakshmi Venkatesh

Karnataka HC19 Jul 2021WP/31344/2017

Case brief

AI extract

What is this about?

In a writ petition under Article 226 and Section 482 Cr.P.C., a television channel challenged the issuance of a non-bailable warrant and the admission of electronic evidence in a defamation case. The court held that issuing a non-bailable warrant without first issuing a bailable warrant was illegal and set aside such orders, while upholding the taking of cognizance.

What did the court decide?

The impugned orders of the Magistrate issuing non-bailable warrants and dismissing the recall application were set aside. The order admitting the CD in evidence and taking cognizance was upheld. The p

M/S Public Tv Vs Mr D Lakshmi Venkatesh — Cheque Dishonour | Karnataka HC (2021)

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W.P.No.31344/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JULY 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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WRIT PETITION NO.31344/2017(GM-RES)

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BETWEEN :

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M/S. PUBLIC TV A KANNADA NEWS SATELLITE TELEVISION CHANNEL OWNED, RUN AND OPERATED BY M/S. WRITEMEN MEDIA PVT. LTD. (A PRIVATE LIMITED COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956) HAVING ITS OFFICE AND PLACE OF OPERATION AT 4^TH FLOOR, TTMC BMTC BUILDING, YESHWANTHPUR CIRCLE YESHWANTHPUR, BENGALURU- 560 022 REP. BY ITS CEO SHRI ARUN KUMAR …PETITIONER

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(BY SRI M.S.SHYAM SUNDAR, ADVOCATE)

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AND :

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MR.D.LAKSHMI VENKATESH AGED ABOUT 51 YEARS S/O. LATE G.DASAPPA R/AT NO.156, 7^TH CROSS 2^ND STAGE, 10^TH ‘A’ MAIN ROAD INDIRANAGAR, BENGALURU- 560 038 …RESPONDENT

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(BY SRI MOHAN MURTHY FOR SRI M.PARTHA, ADVOCATES)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 01.06.2016 (ANNEXURE-A) PASSED BY XXIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN PCR NO.4175/2016 ETC.

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W.P.No.31344/2017

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 28^TH JUNE 2021, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The above petition is filed seeking quashing of the following orders of the XXIV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.13213/2016 against the petitioner:

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i) The order dated 01.06.2016 admitting the compact disc in evidence;

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ii) The order dated 20.08.2016 issuing NonBailable Warrant against the accused and

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iii) The order dated 22.06.2017 rejecting application of the accused to recall the Non-Bailable Warrant issued against them.

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Petitioner has also sought quashing of the order of the Sessions Judge in Crl.R.P.No.500/2017 dated 06.07.2017.

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Petitioner is accused No.2 in

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C.C.No.13213/2016. He is the Chief Executive Officer of

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W.P.No.31344/2017

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M/s Public T.V. Kannada News Satellite Television Channel owned and operated by M/s Writemen Media Pvt. Ltd, a private limited company registered under the Companies Act.

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The respondent filed complaint as per Annexure-C in PCR No.417/2016 seeking prosecution of the three accused named therein for the offences punishable under Sections 499 and 500 IPC. Accused No.1 was shown as Public TV represented by its Chairman and Managing Editor H.R.Ranganath. Accused No.3 is again public TV represented by its reporter Marutesh.

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5. The gist of the complaint is as follows:

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On 05.04.2016 at around 3 p.m., the accused broadcasted an online interview with regard to P.U.C. question paper leakage scam. In the programme the accused telecasted the news that complainant was involved in that scam and was meddling with the investigation in the scam by the CID police. During the programme the anchor of the accused TV phoned the complainant claiming that in the CID report his name

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W.P.No.31344/2017

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figures as culprit. When he questioned that, he was treated in a harsh manner. Complainant is a man of good reputation. Telecasting of such programme implicating his name was only to damage his reputation. He issued notice to the accused calling upon them to pay the damages which they did not reply. Therefore, the accused be tried for the offence of defamation.

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The learned Magistrate on receiving the complaint recorded sworn statement of the complainant on 31.05.2016 and 01.06.2016. During recording of the sworn statement dated 01.06.2016 the compact disc containing content of defamatory programme was marked as Ex.C1. The Magistrate by order dated 01.06.2016 took cognizance of the offence, registered the case in C.C.No.13213/2016 and issued summons to the accused.

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As per the trial Court’s order dated 20.08.2016, the summons were served on the accused,

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but they remained absent. Therefore, the trial Court on that day issued Non-bailable warrant against the accused.

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W.P.No.31344/2017

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The Non-bailable warrants were not executed up to 22.06.2017.

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On 22.06.2017 the counsel on behalf of M/s.Public TV Writemen India Pvt. Ltd appeared and filed application as per Annexure-F for recalling the NBW, along with the copy of the alleged resolution of the accusedcompany authorizing one M.S.Ganesh ACC Executive to appear and defend the case.

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The trial Court on hearing both side by order dated 22.06.2017 rejected the said application on the ground that to recall the non bailable warrant the presence of the accused before the Court is mandatory. In the application it was contended that since the accused is a company, Section 305 of Cr.P.C. has to be followed. The trial Court held that the Court recalling the order issuing process amounts to correction of its own order which is barred under Section 362 of Cr.P.C.

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The accused challenged the said order before the Sessions Court in Crl.R.P.No.500/2017 before the LXV Addl. City Civil and Sessions Judge, Bengaluru (CCH

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W.P.No.31344/2017

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No.66) and also sought interim stay of the proceedings of the trial Court. The Sessions Court by order dated 06.07.2017 declining to grant ex-parte interim stay ordered notice of the revision petition to the complainant.

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The second accused challenges the above orders on the following grounds:

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i) The trial Court took cognizance based on the electronic evidence Ex.C1 without the certificate as required under Section 65B of the Evidence Act. To take cognizance there should be admissible evidence and not prima-facie case.

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ii) Issue of process against the accused is contrary to Section 202 and Section 305 Cr.P.C. Rejection of the application to recall the NBW insisting for personal appearance of the accused is contrary to Section 70(2) of Cr.P.C.

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iii) The accused has telecasted the news in the public interest. Therefore, the case is covered under the exceptions (1) and (3) of Section 499 IPC.

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W.P.No.31344/2017

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iv) The complaint was not accompanied with list of

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witnesses which is pre condition for issuing process as per Section 202 Cr.P.C.

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Reiterating the aforesaid grounds, the learned counsel for the petitioner relies upon the following judgments:

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i) Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and others¹ ii) Javen Chan vs. Pukraj Surana² iii) K.Amarnath vs. Smt.Puttamma³ iv) Sri Rajeev Chandrasekhar vs. Sri Kenchanagouda⁴

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Learned counsel for the respondent opposes

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the petition on the following grounds:

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i) The trial Court on perusing the material before it, has taken cognizance. At that stage mini trial is not warranted.

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ii) The criminal proceedings cannot be quashed

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on the grounds urged. All the grounds urged constitute

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1 (2020)7 SCC 1

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2 AIR 1961 SC 1655

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3 ILR 1999 KAR 4634

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4 Crl.P.No.10710/2012 DD 12.02.2013

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W.P.No.31344/2017

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legal and factual defence for the accused and not the ground for quashing.

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iii) The petition is filed only protract the proceedings before the trial Court and harass the respondents. Since there was delay in filing the revision petition, learned Sessions Judge rightly declined to grant ex parte interim stay and issued notice.

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Reg. The order dated 01.06.2016:

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Under the order dated 01.06.2016, the trial Court has taken cognizance of the offence against the petitioner based on the complaint, sworn statement, other records and issued process. Under this petition only the marking of electronic evidence is questioned.

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The sworn statement of the complainant in support of the complaint was recorded on 31.05.2016 and further sworn statement was recorded on 01.06.2016. During the sworn statement dated 01.06.2016 the compact disk containing the content of programme telecasted by the accused was produced. On playing that on the laptop of the complainant, the CD was marked at Ex.C1.

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W.P.No.31344/2017

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Though in the petition there is no specific prayer for quashing the order taking cognizance, during the course of argument the order taking cognizance was also sought to be quashed. It was contended that since Ex.C1 was inadmissible evidence for non-compliance of Section 65B of the Indian Evidence Act, 1872 the order taking cognizance shall fail.

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It is no doubt true that the Hon'ble Supreme Court in Arjun Panditrao Khotkar’ s case referred to supra has held that in case of VCD, chips etc, the same shall be accompanied by the certificate under Section 65B of the Evidence Act, otherwise they are inadmissible. But in the very same judgment in para 73.2 it was held that if the original document itself is produced viz., the owner of the laptop computer, computer tablet or even a mobile phone by stepping into the witness box and proving that the device concerned on which the original information is first stored, is owned and/or operated by him, the certificate under Section 65B(4) was unnecessary.

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In para 73.3 of the said judgment, it was further held that the directions given in para 64 of the judgment shall be followed by the Courts that deal with the electronic evidence, to ensure their preservation and production of certificate at the appropriate stage and the said direction shall apply to all the proceedings.

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The sworn statement and the other records produced by the petitioner itself show that the complainant had produced his laptop and compact disc and the Magistrate played that in the open Court and then admitted the CD.

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The Hon'ble Supreme Court in para 46 of the judgment in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel⁵ held that the accused/suspect is not entitled to be heard on the question whether process should be issued to him or not. It was further held that as a matter of law, upto the stage of issuance of process the accused cannot claim any right of

5 (2012) 10 SCC 517

W.P.No.31344/2017

hearing. Therefore it is clear that at pre cognizance stage, the accused has no right of audience.

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The learned Magistrate has not taken cognizance only based on Ex.C1. Apart from Ex.C1 the learned Magistrate relied on sworn statement of the complainant where he reiterated the telecasting of the programme and the programme causing damage to his reputation and he issuing notice to the accused calling upon them to pay damages. He also produced the copies of the notices and the postal acknowledgment in proof of service of such notices.

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The complainant in his complaint stated that despite service of notice, the accused did not reply the same. Even in this petition, the petitioner does not dispute telecasting of such programme. Contrary to that it was contended that such act is covered under Exception (1) and (3) to Section 499 of IPC. Learned Magistrate apart from CD, considering other material before him held that at that stage a prima facie case is made out to

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W.P.No.31344/2017

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proceed against the accused. Therefore no fault can be found with the said order taking cognizance.

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It is material to note that challenging the impugned orders of Magistrate, the petitioner filed Crl.R.P.No.500/2017 before the Principal City Civil and Sessions Judge (CCH-16) Bengaluru. Since there was delay in filing the petition, the Sessions Court declined to grant ex-parte interim stay and issued notice to the complainant. In this petition, petitioner challenged that order also. As submitted by the petitioner’s counsel, during pendency of this petition, the petitioner withdrew the said revision petition.

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Technically speaking in view of the withdrawal of the said revision petition, the petitioner has abandoned his claim in this petition. There were in all three accused. Only the second accused has preferred this petition. By a single accused filing the petition he has got the entire proceedings against the other accused also stayed. Therefore it becomes clear that it is the petitioner who is abusing the process of the Court.

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W.P.No.31344/2017

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In para 46 of the judgment in Manharibhai

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Muljibhai Kakadia’s case referred to supra the Hon’ble Supreme Court has held that accused has no right of audience at pre-process stage. The accused have the chance to question the admissibility of the document during the complainant’s evidence under Section 244 of Cr.P.C. or hearing on discharge under Section 245 of Cr.P.C or at trial. Therefore at this stage it cannot be said that marking of Ex.C1 was abuse of the process of the Court or has caused failure of justice to the petitioner.

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Reg. Issuance of non-bailable warrant:

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It is contended that since the accused is the Company, non-bailable warrant should not have been issued. The complainant has not arrayed Sri H.R.Ranganath, the Chairman and Managing Editor, Sri Arun Kumar, Chief Executive Officer and Reporter and Maruthesh, Reporter in their individual capacity. They were implicated only as representatives of the company, though in the complaint it was alleged that they have also personally participated in the crime. In such event, the

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W.P.No.31344/2017

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remedy of the complainant was to array them individually

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also as accused along with the company.

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27. The Hon'ble Supreme Court in Inder Mohan

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Goswami v. State Of Uttaranchal⁶ while considering when non-bailable warrant should be issued, in para 55 of the judgment held as follows:

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“55. In complaint cases , at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court’s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to . Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.”

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(Emphasis supplied)

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The above judgment goes to show that in the complaint cases the Court shall first issue summons and if summons is evaded, then issue bailable warrants and then

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6 (2007) 12 SCC 1

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W.P.No.31344/2017

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take recourse to issue non bailable warrant. If bailable warrants are not honoured, the Court can proceed to attach the properties of the accused for recovery of the bond amount.

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The trial Court without issuing bailable warrant has directly issued non bailable warrant. In paras 23, 24 and 46 of the judgment in Inder Mohan Goswami’s case referred to supra the Hon'ble Supreme Court held that to give effect to the order under the Code, the High Court can exercise its power to quash the proceedings. It was further held that if the High Court has inherent power to act ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Even though the petitioner’s act of withdrawing his revision petition amounts to abandoning his challenge to the impugned orders, the order issuing non bailable warrant against the accused can be quashed to do complete justice.

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Reg. Section 305 of Cr.P.C:

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Relying on the judgment of this Court in Rajeev Chandrasekhar’s case referred to supra it was

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W.P.No.31344/2017

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contended that issuance of the process and non bailable warrant against the petitioner was illegal. It was further contended that exercising its right under Section 305(2) of Cr.P.C., the accused appointed its representative Sri M.S.Ganesh, the trial Court was not justified in rejecting the application to recall warrant without considering that.

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Reading of the judgment in Rajeev Chandrasekhar’s case referred to supra shows that non bailable warrant was not issued against him. The judgment further shows that Rajeev Chandrasekhar was arrayed in the case as the Chairman of the company.

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In that case it was held that a person does not become criminally liable for an act of a company merely because he was the Director, Chairman or Managing Director of the said company. It was further held that it is necessary to prove that said person was actively involved in day-to-day activities of the company and directly responsible for the alleged act, otherwise, there is no vicarious liability in the criminal jurisprudence.

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In the impugned proceedings

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Mr.H.R.Ranganath who is the Chairman and Managing Editor of M/s.Writemen Media Pvt. Ltd. and Sri Marutesh, Reporter have not challenged the order of dismissal of the application for recalling the warrant. The petitioner was not only the Chief Executive Officer, but Reporter of the said TV. Similarly, accused No.1 was not only the Chairman but also Managing Editor and accused No.3 was the Reporter in the said TV channel.

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In para 5 of the complaint, there are specific allegations that accused Nos.1 to 3 have intentionally and deliberately made false allegations and malicious remarks in Public TV against the complainant which had debilitated and damaged his reputation.

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In para 7 of the complaint, it was alleged that the Chairman and Managing Editor being responsible person and it was his duty to ensure that the reckless and scandalous publications are not made to nullify the character and nature of the person.

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W.P.No.31344/2017

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In para 8 of the complaint, it is alleged that such allegations are purposely, knowingly and tenaciously made against the complainant and contemptuous remarks were made and spoken by accused Nos.2 and 3 against the complainant. There are allegations of active involvement of the persons who are arrayed as representatives of the accused company. Therefore Rajeev Chandrasekhar’s case referred to supra is not applicable to the facts of the case.

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Section 305(2) to (4) of Cr.P.C. which were relied upon by learned Counsel for the petitioner reads as follows:

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“ 305. Procedure when corporation or registered

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society is an accused.

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(1) ………………………………………………………………………………

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(2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation.

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(3) Where a representative of a corporation 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 the thing shall be done in the

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presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined, shall be construed as a requirement that the representative shall be examined.

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(4) Where a representative of a corporation does not appear, any such requirement as is referred to in subsection (3) shall not apply.

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38. Inquiry is defined under Section 2(g) of Cr.P.C. as every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.

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In the Law Lexicon by Justice P.Ramanatha Aiyar, the inquiry regarding judicial proceedings is defined as follows:

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“Inquiry”, of a case is not differed till such time as Magistrate begins to record evidence. It commences not with the lodging of the complaint or issue of process, but with the appearance of the accused before the Magistrate to answer the charges. (134 IC 361=33 Bom LR 668=1931 Bom. 411)

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The reading of the above definition makes

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clear that the inquiry starts only on the appearance of the accused. In such event, unless the summoned accused

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W.P.No.31344/2017

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appears, he cannot claim the benefit of Section 305 of Cr.P.C.. Unless the summoned accused appear before the Court and file application under Section 305 of Cr.P.C. seeking permission for appointment of its representative for the purpose of inquiry or trial, they cannot claim the benefit of the same.

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Reg. Exceptions (1) & (3) to Section 499 of IPC:

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The other ground urged that the programme telecasted contained the truthful information in the public interest. Therefore the case is covered under Exceptions (1) and (3) to Section 499 of IPC. It is settled proposition of law that in a petition under Section 482 Cr.P.C. roving enquiry cannot be conducted. This Court cannot hold a mini trial at this stage or even at the stage of taking cognizance. Such contention may constitute the defence for the accused at the time of trial but not a ground for quashing the order taking cognizance.

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Having regard to the aforesaid facts and circumstances and the legal position, the petition is partly allowed.

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W.P.No.31344/2017

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(i) The petition for quashing the impugned order of the Sessions Judge Crl.R.P.No.500/2017 is disposed of as having become infructuous.

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(ii) The impugned order of the Magistrate dated 01.06.2016 is upheld.

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(iii) The impugned orders of the Magistrate dated 20.08.2016 and 22.06.2017 issuing non bailable warrant against the petitioner and dismissing his application for recalling the non bailable warrant are hereby set aside.

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(iv) Liberty is reserved to the petitioner/accused to appear before the Magistrate and file application under Section 305 of Cr.P.C. for appointment of the representative for the company. The Magistrate shall consider such application, if filed, in accordance with law.

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Sd/JUDGE

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AKC/KSR

M/S Public Tv v. Mr D Lakshmi Venkatesh

Case brief

What is this about?

What did the court decide?

M/S Public Tv v. Mr D Lakshmi Venkatesh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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