Delhi High Court: A Single Judge Bench of Anup Jairam Bhambhani, J.* quashed and set aside the summons issued to the editor and deputy editor of “The Wire” in a criminal defamation case over a publication on a dossier allegedly depicting JNU as a “den of organised sex racket”.
Background
In the present case, the criminal complaint alleged offences punishable under Sections 499, 500, 501 and 502 of the Penal Code, 1860 (“IPC”) which arised from a publication carried on the on-line news portal “The Wire” on 26-4-2016. The criminal complaint was filed against 11 persons, including the Editor (Accused 1), the Deputy Editor (Accused 2), a politician, two assistant professors, two other major publications, two students, an SHO and a website (collectively as “other accused persons”).
The complainant, a Professor of Jawaharlal Nehru University (“JNU”) had prayed before the Court to take cognizance of offences punishable under Sections 499, 500, 501 and 502 of the IPC against all accused persons for imputing that she prepared a dossier allegedly depicting that JNU was a “Den of Organised Sex Racket”. The complainant submitted that she did not prepare any such dossier and she further submitted that the said imputation was firstly made in an e-magazine “The Wire” and thereafter the other accused persons circulated/re-circulated/tweeted/re-tweeted the above imputation, published by the said magazine, with their comments which were also defamatory in nature. Therefore, she further claimed that she was a victim of a hate campaign which had begun after the publication of false information by the e-magazine, “The Wire”. On 7-1-2023, the Magistrate issued summons only to Accused 1 and 2 and thus, the said accused persons filed the present petition to seek quashing of the said summons.
Analysis, Law, and Decision
The Court noted that at the stage when summons were issued, no certificate under Section 65-B of the Evidence Act, 1872 in support of a “print-out” of the on-line publication, had been filed by the respondent. This on-line publication was the only matter which had been imputed to the present petitioners. Thus, the Court opined that since the certificate under Section 65-B of the Evidence Act, 1872 was absent, the print-out of the on-line publication could not be read in evidence, as correctly observed by the Magistrate. For this, the Court relied on Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, wherein the Supreme Court held that “the certificate required under Section 65-B(4) was a condition precedent to the admissibility of evidence by way of electronic record. Oral evidence in the place of such certificate could not suffice as Section 65-B(4) was a mandatory requirement of the law”.
The Court noted the portion of the publication that was extracted in the criminal complaint, which contained the allegations against the petitioners and opined that “there was nothing in the said extract that could be taken to be defamatory of the respondent”. The Court further noted that “the caption used in the publication only said that the dossier called JNU a “den of organised sex racket”, but nothing in the extract said anything against the respondent herself, much less anything that could be taken to be defamatory of the respondent”.
The Court opined that the Magistrate correctly observed in the summoning order that he “was left only with oral accounts as deposed by the complainant and her witnesses” and the Magistrate proceeded solely based on the oral testimony of some of the complainant’s witnesses in relation to the written matter. The Court further noted that the written matter, that is, the subject of publication, was not before the Magistrate in any admissible form. The Court opined that “the Magistrate correctly appreciated the position of law in this behalf; but then erroneously proceeded to pass the summoning order based on oral evidence in substitution of the electronic record. This, the Magistrate could not have done since no certificate under Section 65-B of the Evidence Act had been filed in support of the subject publication, which was an on-line publication; which was the only subject-matter of the criminal complaint against the present petitioners”. The Court further opined that the subject publication did not say that the respondent was involved in any wrongdoing; nor did it speak of the respondent in any derogatory, derisive, or denigrating terms but only stated that the respondent had led a team of persons who had compiled a dossier, which dossier purported to expose certain wrongdoing at JNU.
In Subramanian Swamy v. Union of India, (2016) 7 SCC 221, the Supreme Court held that “before issuing summons in a criminal complaint alleging defamation, a Magistrate must act with great circumspection, and be careful in assessing whether or not an offence was disclosed”. This Court noted that the controversial dossier exposed wrongful activities that it said were going-on within the university campus; and that the respondent was leading a team of persons who compiled the dossier. The subject publication nowhere said that the respondent was involved in the wrongful activities; nor does it make any other derogatory reference to her in connection therewith. Thus, the Court opined that it was unable to discern as to how the subject publication could be said to have defamed the respondent.
The Court noted that “the grievance of the respondent was not that what was stated in the dossier was false, the respondent’s grievance was that she did not lead the team of persons who compiled the dossier. Her grievance was that the comments made by the other accused persons against her were defamatory”. However, the Magistrate considered it fit to summon only Accused 1 and 2 and chose not to summon any of the other accused. Thus, the Court held that the summoning order made by the Magistrate in criminal complaint could not be sustained in law and therefore, the Court quashed and set aside the said summoning order.
[The Wire through its Editor v. Amita Singh, 2023 SCC OnLine Del 1834, decided on 29-3-2023]
Advocates who appeared in this case:
For the Petitioners: Senior Advocate Nitya Ramakrishnan;
Advocate Rahul Kripalani;
Advocate Rea Bhalla;
Advocate Supraja V;
For the Respondent: Advocate Alok Kumar Rai.
*Judgment authored by: Justice Anup Jairam Bhambhani.
