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IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE:: SIVASAGAR Cr. Case No. 81 of 2011
Under Section 499/500of Indian Penal Code
Complainant:-
Ranjit Buragohain
S/O- Lt. Ghana Kanta Buragohain
Paschim Obhyopur Development Block
Suffry, in the district of Sivasagar
Resident of Beltola Bhetapara Chariali
Kanaklata Path, Guwahati 28
House No. 18
Accused:-
Surjya Kumar Bora
S/o Guna Bora
Staff Reporter Oxomiya Pratidin
Resident of Ward No. 11
Sunari Town, Dist - Sivasagar
Present
Sri Rupak Rajak, AJS
Addl. Chief Judicial Magistrate,
Sivasagar, Assam
Advocate Present for the Complainant: - Mr. A. M. Bora
Advocate Present for the Defense: - Mr.M. Goduka
Dates of Recording Evidence: - 27-02-13, 26-09-13,08-08-14
Argument heard on: - 01-08-15
Page 2 of 17
JUDGMENT
14th August 15
1. The prosecution story in nutshell is that the complainant is working as a
Block Development Officer (in charge) Paschim Obhoyapur Development
Block. In the district of Sivasagar. Assam and is a permanent resident of
Guwahati and presently residing in Sivasagar and is a citizen of India by
birth.
2. That the complainant is a Senior Officer of Assam Administrative Service
and is known to be an upright officer throughout the state for his service
and he serving the society without any kind of blemish.
3. That the complainant has always been known for his benevolent character
as well as his upright nature. Owing to his simple living and high thinking
attitude, the complainant is loved and respected not only by the people of
his own society, but also by the hundreds of other person who have come
to contact with him from time to time. On account of his honest, upright
and dynamic nature, the complainant enjoys a high reputation in the
estimation of the public at large.
4. That the complainant begs to state that the charged accused person is a
staff reporter local/correspondent of the vernacular Assamese daily news
paper Oxomiya Protidin having circulation over all over Assam and is a
resident of Ward No. 11, Sonari in the district of Sivasagar Assam. The
charged accused person owing to his personal grudges is vocal against the
complainant for no fault of the complainant.
5. That the complainant begs to state that owing to said personal grudges, the
charged accused on various occasions had tried to malign his image in the
Page 3 of 17
general public by writing and publishing various false and fabricated news
item in the aforesaid news paper using his occupational advantage.
6. That the complainant begs to state that owing to such grudge the accused
being the local correspondent of the above mentioned daily news paper
authored certain news items which were published in the same where
certain false and malafide allegations were put up against him.
7. The complainant further beg to state that the said vernacular news paper
Oxomiya Protidin is published from Guwahati/Dibrugarh and has wide
circulation in the entire state of Assam.
8. That on 24-03-09 news item under the caption
was published in the aforesaid vernacular newspaper where it has been
alleged by the charged accused that the complainant has falsely tried to
convince certain journalists that National Rural Employment Guarantee
Scheme herein after referred to as NREGA) was successfully implemented in
the Obhoyapur Development Block. In said news item it was further alleged
by the charged accused that the complainant has misappropriated
government fund allocation under the said scheme.
9. That again on 22-05-09 another news item under the caption
?was published in the same newspaper by the charged
accused and in the said news item also, the charged accused with the some
intention other than bonafide, made certain baseless allegation against the
complainant by alleging interalia that the compliant had misappropriated
funds allotted for Sampoorna Gramin Rozgar Yujana (SGRY) and practiced
partially wile allotting said funds to the Gaon Panchayats under his
jurisdiction being a Govt. official who responsible for the implementation said
scheme.
Page 4 of 17
10. Another such news item published again in the aforesaid news paper on its
20-06-09 issue under the caption , - . In
the said news item along with other false allegation it has been further
alleged by the charged accused that the complainant also issue job card to
a dead person namely to one Mangalu Majhi of Vaju Gaon Panchayat under
the aforesaid scheme.
11. That another news item was published in the said newspaper on 04-12-09
under the caption by the charged
accused that the complainant made payment to NREGA workers in cash for
the financial year 2008-2009 and out of said payments complainant
deducted 10-50% for the workers wage for his own purpose. The
complainant bergs to state that the news item is totally false and fabricated
in as much as no wages to the workers were paid in cash as alleged by the
charged accused and the all payments to the workers for the said period
were made through bank account of the workers opened for his said
purpose as per government rules and guidelines for successful
implementation of the said scheme.
12. That the complainant begs to state that all the aforesaid news item were
authored by the accused and being a staff reporter of said newspaper he
had published the aforesaid all false and fabricated news item in his
newspaper using his occupational advantage against the instant
complainant.
13. That the complainant begs to state that the allegations put up against him
are fictitious and baseless. The complainant being the Block Development
Officer has no jurisdiction to allot fund to Gaon Panchayats and the
allegation that, he has discriminated while allotting fund to the Panchayat is
totally baseless and false in as much as that the allotment of the fund
under aforesaid scheme are to be strictly done by the Director DRDA
Page 5 of 17
himself. In the news item published on 22-05-08 it has been alleged that
the complainant partially while allotting funds to the Gaon Panchayats under
his jurisdiction, but the relevant act incorporate d for the purposed is very
much clear about the authority who can a lot fund to the Gaon Panchayats
under the schemes.
14. That the further in the news item dated 20-06-09 it has been alleged by
the charged accused person that the job card has been allotted against the
name even the dead persons and to prove it, the name of one Manglu Majhi
is mentioned in the news item by the accused as a dead person against
whom purportedly job card is issued under NREGA by the complainant. It is
pertinent to mention herein that said Manglu Majhi is still alive and very u
much working with the help of Job card issued to him as contrary to their
allegation made by the charged accused in the aforesaid news item and a
said Manglu Majhi wrote a letter to the complainant to controvert the said
news item.
15. That soon after publication of news report in the aforesaid vernacular news
daily, several friends, relatives and acquaintances of the complainant had
embarrassing questions to the complainant regarding the news item,
thereby causing irreparable damages to his reputation. It would be relevant
that he herein that one of close friends of the complainant one Sri Lachit
Das, General Secretary for al Assam Extension Offices & Panchayat and
Women& Children Association who is resident of Geeta nagar, House No. 3,
Guwahati 24 had informed the complainant after reading the news report
and expressed his concern about the state of affairs centering the news
item on 06-12-09 from the aforesaid news item It was evident in the face of
it that the name and fame of the complainant had been harmed in the eye
of the public and especially before his near friends and relative the same
was also confirmed by the said Sri Lachit Das.
Page 6 of 17
16. That the complainant begs to state that when he visited Guwahati in the
month of November 2009 for his official work, his sister Smi. Deepali
Bailung and other close relative who are residence of Guwahati questioned
the integrity of the complainant as they had come across the above three
news item published the charged accused and also informed the
complainant and that his reputation in the eyes and estimates other has
deeply degraded. The complainant only then came to know the serious
implication made by the aforesaid news item on his reputation.
17. That the complainant being highly embarrassed by the publication of the
sais news articles, had sent clarification to the editor, Axomiya Pratidin,
Guwahati Assam on stating all facts of allegation that was put up against
him as aforesaid but clarification never been published in the same
newspaper at the instances of the accused.
18. That the complainant begs to state that the imputation and the allegation
made against him are totally false and baseless and it has done
considerable damage to him in the terms of reputation in the society.
19. That the complainant begs to state that the imputations made in the
aforesaid news item published in the assamese daily newspaper OXOMIYA
PRATIDIN in its aforesaid issues authored and compiled by the accused
who is the local correspondence/staff reporter of said daily and thereby he
has committed an offence triable u/s 499/500 of the Indian Penal Code and
are liable to be prosecuted there under.
20. On the basis of the complainant this court has taken cognizance of offence
under section 499/500 IPC against the accused Surjya Kr. Bora.
Page 7 of 17
21. On summons the accused appeared before the court and he was allowed to
go on bail. The particulars of offences under section 419/500 IPC are
explained to the accused to which he pleads not guilty.
22. During trial the complainant examined four witnesses. The accused
examined none.
Points for Determination:
Whether the accused Surjya Kr. Bora published imputations against the
complainant Ranjit Buragohain in the daily news paper Asomiya
Pratidin knowing or reason to believe that such imputation will harm
the reputation of the complainant?
I have heard the argument of both the sides. I have gone through the
evidences as laid by the prosecution and I have considered all relevant materials
on record. My decision and reasons for the decision are as follows:-
23. The offence of the defamation consist of three essential ingredients, viz
a. making or publishing any imputation concerning any person;
b. such imputation must have been made by words either spoken or
intended to be read, or by science, or by visible representations
c. such imputations must have been made with the intention of harming
or knowing or having a reason to believe that it will harm the
reputation of the person concerning whom it is made.
24. In this case the complainant alleged that the accused on four occasions
published four different defamatory news items against him on the daily
newspaper Pratidin
25. The first was published on March 24, 2009 in the daily newspaper Asomiaya
Pratidin. The news item was published under caption
.under this heading the news is published that the complainant
Page 8 of 17
who is a Development officer tried to skin some information for which there
was an upshot.
26. The second news item was published on May 22, 2009 in the same
newspaper Asomiya Pratidin. The news was published under the caption
?Under this news item it is published
that one Naresh Das and Ratan Das are openly miss-appropriating the
public money with the assistance of in-charge BDO. It is also reported that
the public made allegations that for the said misappropriation, the villagers
could not see the face of developments of their village.
27. The third news item was published on 20th June 2009 in the same
newspaper Asomia Pratidin. The news was published under the
heading , - It is reported that the
complainant along with Panchyat President and others instead of issuing Job
Card to the deserving labours have kept it secretly. The news is also sub-
headed that the job cards are even issued to dead persons. It is also alleged
that the complainant extended his direct assistance to the Bhajo Gaon
Panchayat in the financial scam.
28. The fourth news item was published on 4 December 2009. It is reported
under the heading it is alleged that
at the time of giving the money to the labourers, 50% of the money was
taken by Panchayat authority. It is further alleged that payments are also
being made to the labour who has not even worked for a day. As per the
report the complainant is involved in such financial scam.
29. From the above four news items it appears that the complainant who is a
public servant is involved in the scams relating to issuance of job card and
he directly extended his assistance to those panchayat officials.
Page 9 of 17
30. The complainant is appeared as PW 1. He deposed that the allegations
made against him are fictitious and baseless. The complainant being the
Block Development Officer has no jurisdiction to allot fund to Gaon
Panchayats and the allegation that, he has discriminated while allotting fund
to the Panchayat is totally baseless and false in as much as that the
allotment of the fund under aforesaid scheme are to be strictly done by the
Director DRDA himself. He further deposed that all the informations relating
to NREGA scheme has been uploaded in the Internet and also maintained
manually. That the news item so published is false and the accused
published the same with the intention to injure the reputation of the
complainant.
31. During his cross-examination the complainant admitted that the names of
the chief editor and the publisher are written in the newspapers. He also
admits that the news item so sent by the reporter can be edited by the
editors.
32. During argument learned counsel for the accused submitted that the editor
and publisher of the newspapers are not arrayed in the case. He submits
that whatever report sent by a reporter to the editor, of a newspaper is
subject to modification and acceptance of the editor. It is the final discretion
of the editor to publish or not to publish the news item. In this case the
editor printer or publisher are not made parties. So the accused cannot be
held responsible for the news item. In absence of the editor and publisher
the reporter of the news item cannot be held guilty.
33. On the other hand learned counsel for the complainant submitted that
journalists do not occupy any special privilege and have no greater freedom
than others to make any imputations or allegations sufficient to ruin the
reputation of a citizen. He submitted that the complainant is a responsible
public officer having reputation in the society. For the publication of the
news items in question his reputation has been duly injured. He also
Page 10 of 17
submitted that it is not a single occasion where the accused published such
defamatory news item against the complainant. But the accused repeatedly
on four occasions have published defamatory news items against the
accused. Therefore it is clear that the intention of the accused is only to
defame the complainant.
34. PW 2 Manglu Majhi submitted that the accused in his report falsely stated
that he is dead. He is a resident of village Bhojo and Bhojo Gaon Panchayat
issued him Job Card. That after receiving the job card he worked and
money was deposited in his bank account.
35. Learned counsel for the complainant submitted that PW 2 Manglu Majhi is
the person who is reported to be dead by the accused. Therefore it is
crystal clear that the accused published the defamatory report intentionally.
Learned counsel for the accused submitted that Manglu Majhi was the
complainants witness No.2 who was examine u/s 202 Cr.P.C at Guwahati.
But the PW Manglu Majhi in his cross replied that he never visited Guwahati.
36. Learned Counsel for the accused relied on Supreme Court case reporting
K.M. Mathew Vs. State of Kerala and Anr reporting 1992 AIR 2206.
Honble Apex Court has held that:-
The complainant seems to rely upon the presumption under Section 7 of the
Press and Registration of Books Act, 1867 ('the Act'). But Section 7 of the Act
has no applicability for a person who is simply named as 'Chief Editor'. The
presumption under Section 7 is only against the person whose name is
printed as 'editor' as required under Section 5(1). There is a mandatory
(though rebuttable) presumption that the person whose name is printed as
'Editor' is the editor of every portion of that issue of the newspaper of which
a copy is produced. Section 1(1) of the Act defines 'Editor' to mean 'the
Page 11 of 17
person who controls the selection of the matter that is published in a
newspaper'. Section 7 raises the presumption in respect of a person who is
named as the editor and printed as such on every copy of the newspaper.
The Act does not recognise any other legal entity for raising the presumption.
Even if the name of the Chief Editor is printed in the newspaper, there is no
presumption against him under Section 7 of the Act.
37. Again learned Counsel relied on Jayanta Barua and Anr. Vs Dilip
Barua reporting 2014 (2) GLT 93. Honble Gauhati High Court has held
that:- A perusal of section 7 would go to show that under section 7 of the
Act, in any legal proceeding, civil as well as criminal, unless the contrary is
proved, production of a declaration or in the case of the editor, a copy of
the newspaper containing the name of the editor, shall be held to be
sufficient evidence that the persons whose name appear in the declaration
as the printer or publisher, or printer and publisher are the printer or
publisher, or the printer and publisher and the name of the editor as printed
in the newspaper is the editor of every portion of that issue of the
newspaper. Thus, presumption can be drawn against the editor, publisher
and printer with regard to publication of a news item. In view of the
aforesaid, the persons declared as editor, publisher and printer are liable for
any defamatory imputation in any news item in a newspaper as
presumption as to awareness of contents of news item can be raised
against them. It is to be noted selection of news item cannot amount to
making of news. Editor selects the news and the printer and publisher
publish the news item. Publication of imputation alone constitutes an
offence under section 499 IPC.
38. After going through the above citations what I understand is that to make
the editor, printer and publisher of a respective newspaper liable for a news
item under section 499 IPC his name is not required to be published in the
respective newspaper. Under section 7 of Press and Registration of Books
Act their names can be presumed. There is a mandatory (though
Page 12 of 17
rebuttable) presumption that the person whose name is printed as 'Editor' is
the editor
39. In this case there is no dispute regarding the editor of the news item. Non-
implementation of the editor and publisher does not absolve the reporter
from the liability of the news item being defamatory. The accused has not
deputed that he has not published the news.
40. Complainant relied on the Judgment of Honble Delhi High Court reporting
Mrs. Shobhana Bhartia and Others vs. Net of Delhi and Anr. (2007)
ILR 7 Delhi 1. In this case Honble Delhi High Court has held that:-
Every individual has a right to protect his reputation. Disparaging
and defamatory statements made about a person to a third person or
persons without lawful justification or excuse are actionable in law. As
observed by the Supreme Court in the decision reported as State of Bihar
v. Lal Krishna Advani MANU/SC/0716/2003MANU/SC/0716/2003:
AIR2003SC3357 reputation is an integral and important aspect of dignity
of every individual. The right to preservation of one's reputation is
acknowledged as a right in rem, a right good against all the world.
But freedom of speech and expression are the foundation of all
democratic organisations. Freedom of expression stems from the
requirement that members of a democratic should be sufficiently
informed. In the decision reported as Attorney General v. Times
Newspaper Ltd. (1973) 3 All ER 54, it was observed that freedom of
expression has following four broad social purposes to serve:
(i) It helps an individual to attain self fulfillment.
(ii) It assists in the discovery of truth.
Page 13 of 17
(iii) It strengthens the capacity of an individual in participating in
decision making.
(iv) It provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change.
The right of the print media to publish news pertaining to matters
of public concern is recognized as an integral part of freedom of
expression. (See decisions of the Supreme Court in Virender v. State of
Punjab AIR 1958 SC 986 and Sakal Papers v. Union of India
MANU/SC/0090/1961MANU/SC/0090/1961 : [1962]3SCR842 .
The fundamental objective of journalism is to serve the people
with news, views, comments and information on matter of public interest
in a fair, accurate, unbiased, sober and decent manner. It is the
legitimate function of a newspaper in a democratic set up to act as the
champion of a clean administration and sentinel of public interest, and as
such a newspaper is within its right to expose and bring to the notice of
the general public any lapse or malpractice in the working of a public
authority including acts of nepotism and favoritism.
41. The complainant also relied on one judgment of Honble Karnataka High
Court. It is reported in Subhash K. Shah Vs. K. Shankar Bhat 1993 Cr.
L. J 1296. Honble High Court has held that :-
10. The respondent was working as a journalist. He was holding a
responsible position. He appears to be an educated man. Therefore,
there is more responsibility on the respondent in making proper use of his
pen. Words are weapons. In these days, the newspapers, radios and T.V.
have spread to every nook and corner of the society. The persons who
use words written or spoken or use in representation in presenting their
ideas in these medium of communication must do it with a full sense of
Page 14 of 17
responsibility and if they misuse the liberty given to them, they are also
liable to answer for the consequences of their acts of misusing their
words or representations in these medium Viewing in this context, the
purpose of sentence in such cases is to reform the accused so as to make
the likeminded persons deter from doing any similar acts.
11. In Jagadish B. Rao v. State 1974 Cri LJ 1358 Daman and Diu Judicial
Commissioner's Court has observed as follows :-
"16. Assassination of character has been considered by Courts from
times immemorial as no less serious than assassination of persons
because character of a person is one of the most valuable things that a
person possesses. The conduct of the accused person subsequent to the
publication of libel, before and during the trial may also have to be taken
into consideration."
12. In Saheb Singh Mehra v. State of Uttar Pradesh,
MANU/SC/0067/1965MANU/SC/0067/1965 the Supreme Court has
observed as follows Cri LJ 438
Jurisdiction - The press has great powers in impressing the minds of the
people and it is essential that persons responsible for publishing anything
in newspapers should take good care before publishing anything which
tends to harm the reputation of a person. Reckless comments are to be
avoided. When one is proved to have made defamatory comments with
an ulterior motive and without the least justification motivated by self
interest. He deserves a deterrent sentence."
42. Considering the evidences on record and the above discussion it appears to
me that the news item so published in the daily newspaper Asomiya
Pratidin, specially news which are exhibited as Ext- 3 and Exhibit 4 are
Page 15 of 17
defamatory statement against the complainant and the accused is held
responsible for the defamatory news item.
43. The freedom of the journalist is an ordinary part of the freedom of the
subject, and to whatever lengths the subject in general may go, so also may
the journalist, but, apart from statute law, his privilege is no other and no
higher. The responsibilities which attach to this power in the dissemination
of printed matter may, and in the case of a conscientious journalist do,
make him more careful; but the range of his assertions, his criticisms, or his
comments, is as wide as, and no wider than, that of any other subject. No
privilege attaches to his position.
44. As the matter is of great public importance, it would, perhaps, be better to
quote the well-known passage of Lord Shaw in Arnold v. King Emperor
LR (1913-14) 41 Ind. App. 149 at 169.
The freedom of the journalist is an ordinary part of the freedom of the
subject, and to whatever lengths the subject in general may go, so also
may the journalist, but, apart from statute law, his privilege is no other
and no higher. The responsibilities which attach to this power in the
dissemination of printed matter may, and in the case of a conscientious
journalist do, make him more careful: but the range of his assertions, his
criticisms, or his comments, is as wide as, and no wider than, that of any
other subject. No privilege attaches to his position.
45. In the light of above discussion I therefore, come to conclusion that the
complainant is able to prove its case beyond all reasonable doubt. The
accused Surjya Kumar Bora is held guilty of offence u/s 500 IPC.
46. Considering the nature of offence I am not inclined to extend the benefit of
Probation of Offenders Act.
Page 16 of 17
47. The accused is convicted u/s 500 IPC and he is sentenced to undergo
Simple Imprisonment for 1 (one) month and shall also liable to pay fine of
Rs. 1000/- . In default to pay fine, further SI of 10 days.
48. The bailbond is extended till next 6 (six) months.
49. Let a free copy of judgment be furnished to the accused.
Given under my hand and seal of the Court
Date- 14th August 15
Place- Sivasagar (Rupak Rajak)
Page 17 of 17
ANNEXURE Prosecution Witnesses:- PW1. Ranjit Kr.Buragohain
PW2 . Manglu Majhi
PW3 . Majibur Hussain
PW4 . Pradip Chetia
Complainants Exhibits -
Exhibit 1:- News Paper dated 24-03-09
Exhibit 2:- News Paper dated 22-05-09
Exhibit 3:- News Paper dated 20-06-09
Exhibit 4:- News Paper dated 04-12-09
Exhibit 5:- Account Statement (allotment of SGRY Fund)
Accused Exhibits
Exhibit A:- Affidavit
Exhibit B:- Job card of Premkanta Tankbai
Exhibit C:- Deposition of PW1 Manglu Majhi
Exhibit D:- Letter issued by Bhaju Gaon Panchayat dated 13-04-09
Exhibit E:- Letter issued by Bhaju Gaon Panchayat dated 10-06-09
Exhibit F:- Letter issued by P.C Das dated 9-07-09
Exhibit G:- Letter issued by Block Development Officer, dated 17-8-09
Exhibit H:- Proceeding of Assam Information Commission
Exhibit I:- Photocopy of letter issued by president Charaideo Press Guild
(Rupak Rajak) Additional Chief Judicial Magistrate
Sivasagar