IN THE SUPREME COURT OF INDIA

CRIMINAL   APPELLATE   JURISDICTION

CRIMINAL APPEAL NO. 451 OF 2009 (Arising out of S.L.P.(Criminal) No.1382 of 2008)

Capt. S.D. Kathuria (Retd.) … Appellant (s)

Versus

Thiru N. Ravi & Ors. … Respondent (s)

WITH

CRIMINAL APPEAL NO. 452 OF 2009 (Arising out of S.L.P.(Criminal) No.1383 of 2008)

Capt. S.D. Kathuria (Retd.) … Appellant (s)

Versus

Vikram Philips & Anr. … Respondent (s)

O R D E R

Leave granted.

With the consent of learned counsel for the parties, the appeals

are taken up for final disposal at this stage itself.

The appeals are directed against two judgments and orders dated

10th August, 2007 and 16th August, 2007 passed by the High Court of

Delhi  in  Crl.  M.C.  No.3003 of  2004 and Crl.  M.C.  No.1639 of  2007

respectively.   By  the  impugned  orders,  a  learned  single  Judge,  in

exercise  of  jurisdiction  under  Section  482  of  the  Code  of  Criminal

Procedure (for  short  ‘the Code’),  has quashed the order  of  the Trial

Court summoning the petitioners before the High Court, (Respondents

No.1 to 3 in Criminal Appeal No. 451 of 2009 and Respondent No.1 in

Criminal Appeal No. 452 of 2009) to face trial for offence under Section

499 read with Sections 107/34 of the Indian Penal Code (‘IPC’ for short).

Consequently, the complaint against the said petitioners has also been

quashed.

Since both the appeals arise out of the same complaint, these are

being disposed of by this common order.

In order to appreciate the controversy, a few material facts may

be noted:

A news item titled “Crime and Harassment”  relating to  alleged

harassment of one Ms. Loveleen in her matrimonial home at the hands

of her father-in-law and husband was published on 19th January, 1993 in

the daily Hindu newspaper. Ms. Loveleen was married to the son of the

appellant  herein,  namely,  Rakesh Kathuria (since deceased),  on 10th

January, 1992. Alleging that a defamatory statement had been made by

the father of  Ms. Loveleen, namely, N.D. Chawla and the same had

been published by the newspaper without verification, a legal notice was

issued  by  the  appellant  and  his  son  Rakesh  Kathuria  to  the  editor,

publisher,  reporter,  the  newspaper,  N.D.  Chawla  and  Ms.  Loveleen

asking  them to  explain  their  position  with  regard  to  the  said  article.

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Having failed to receive any response, the appellants and his son filed a

criminal  complaint  against  the  editor,  the  publisher,  the  reporter,  the

newspaper,  N.D.  Chawla  and  Ms.  Loveleen,  accused  Nos.1  to  6

respectively under Sections 499 and 500, IPC.   However,  during the

pendency of  the  said  complaint,  the  son of  the  appellant  committed

suicide on 2nd March, 1995.  After the death of Rakesh Kathuria, Ms.

Loveleen got remarried. Subsequently, at the request of the appellant,

proceedings against Loveleen (accused No.6) were dropped. Vide order

dated 27th August, 2002, the Magistrate took cognizance of the offence

and directed issue of summons to the aforenamed five accused).  The

editor, the publisher, the newspaper and the reporter filed two petitions

under Section 482 of the Code for quashing of the complaint against

them.  As noted earlier, by the impugned orders, the High Court has

quashed the summoning orders as well as the complaints against the

accused Nos.  1  to  4.  For  the  sake  of  ready reference,  the  relevant

portion of the impugned order is extracted below:

“22. Having  chosen  to  drop  proceedings  against Loveleen and her father complainants cannot be permitted to indirectly achieve what they cannot achieve directly.

23. Loveleen  and  her  father  have  been  freed  of  all bondage pertaining to, arising out of and connected with the matrimonial bond between Loveleen and complainant No.2.  In my opinion, they being the principal tort feasers, complaint cannot be allowed to continue against the printer and the publisher or for that matter editor of the newspaper who at best would be guilty of abetting the commission of the  offence  under  Section  499  IPC.   My reason for  so holding is that there are no averments in the complaint that the petitioners published the offending news item with an intent  to  defame the complainants.   Charge against  the petitioners is, as per para 14 of the complainant, that they

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did  not  verify  the  truth  of  the  allegations  leveled  by accused Nos.5 and 6 before publishing the news item, it is further  relevant  to  note  that  the  complaint  nor  the summoning order has proceeded on the basis that qua the petitioners case is made out under Section 499 IPC read with Section 107 IPC or read with Section 34 IPC.  There is no allegation of conspiracy, i.e., Section 120B IPC is not attracted.”

Aggrieved, the sole complainant is before us in these appeals.

We have heard learned counsel for the parties.

Learned  counsel  for  the  appellant  has  strenuously  urged  that

having regard to the nature of the imputations against the respondents,

the learned Judge was not justified in quashing the complaint  at  the

threshold  and  to  hold  that  the  defamatory  article  was  protected  by

exception 9 to Section 499 IPC.  Learned counsel has submitted that

one of the factors which has heavily weighed with the Court in quashing

the complaint against accused Nos.1 to 4 is the dropping of proceedings

by the petitioner against Loveleen (accused No.6) and her father N.D.

Chawla (accused No.5).  Learned counsel asserts that as a matter of

fact  proceedings  were  dropped  only  against  accused  No.6  and  not

against accused No.5, at whose instance the news item was published

and, therefore, on account of this factual error, which goes to the root of

the matter, the order of the High Court stands vitiated.

Mr. S.S. Gandhi, learned senior counsel appearing on behalf of

the respondents (accused Nos. 1 to 4) very fairly states that as per the

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order sheet of the Trial Court, proceedings against accused No.5 were

not dropped.

We are of  the opinion that  in  view of  the aforenoted admitted

factual  position,  the  order  passed  by  the  High  Court  cannot  be

sustained.  It  is manifest from the afore-extracted operative portion of

the impugned order that the learned Judge was of the view that since

proceedings against  the principal  tort  teasers,  namely,  accused No.5

and 6 had been dropped, the whole genesis of the complaint vanished

and thus, complaint against accused No.1 to 9 for offence under Section

499/500,  IPC  could  not  continue.   We  feel  that  the  aforenoted

inadvertent factual error about dropping of proceedings against accused

No.5,  who  is  alleged  to  have  got  the  news  item  published,  had

influenced the Court to a great extent, resulting in miscarriage of justice.

We are, therefore, of the opinion that this aspect of the matter needs to

be re-examined by the High Court.  For the view we have taken, it is

unnecessary to examine the submissions made by learned counsel for

the appellant on the merits of the case.

Consequently, the appeals are allowed; the impugned orders are

set aside and both matters are remitted back to the High Court for fresh

consideration in accordance with law.

Both the appeals stand disposed of in the above terms.

…………………………J.

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[ D.K. JAIN ]

…………………………J.         [ R.M. LODHA ]

New Delhi, March 6, 2009.

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