AROON PURIE versus STATE OF NCT OF DELHI & ORS. on 31 October 2022

1. Leave granted.

2. These appealschallenge the common judgment and order datedB07.04.2021 passed by the High Court of Delhi at New Delhi in CriminalM.C. Nos. 3492 of 2013, 4636 of 2013 and 1762 of 2014 filed by Mr.Aroon Purie; Mr. Parampreet Singh Randhawa &Ors.; and Mr. SaurabhShukla, respectively.

3. A news item[1] titled‘Mission Misconduct’ was publishedin theCnews magazine INDIA TODAY (for the period of 23.04.2007 to30.04.2007)stating that in a string of embarrassments for the foreignoffice, three Indian Officials posted in the Indian High Commission atUK had to be recalled in quick succession following serious allegationsof sexual misconduct, corruption in issuance of visas and sale of Indianpassports to illegal immigrants. The Article also mentioned that theDallegations were levelled against an officer of the Indian Foreign Serviceposted in UK for soliciting sexual favours from a local employee. TheArticle further stated that said officer,now back in India, was facingdisciplinary action and when contacted said official denied the charges.

4. It appears that original accused No.12 whose identity is notEbeing disclosed, was working as a ‘Clerk Typist’ in the Consulate Generalof India, Edinburgh and she had filed a complaint before the ConselGeneral alleging sexual harassment at the hands of said officer. Thecomplaint was made on 10.07.2006 (wrongly mentioned as 10.07.2005in certain documents placed on record). This was followed by anotherFcommunication dated 05.03.2007 to the Deputy High Commissioner, HighCommission of India, London alleging continued sexual harassment atwork place at the instance of said officer. The record shows that theMinistry of External Affairs by the order dated 08.03.2007 directed thatsaid officer be recalled and that said officer be placed under suspension.On 15.03.2007 the complaint filed by accused No.12 was forwarded toGthe Joint Secretary, Ministry of External Affairs, which issued an orderon 21.03.2007 stating that disciplinary proceedings were contemplatedagainst said officer and that said officer was placed under suspension.These developments were prior to the publication of the Article.

H1 "the Article” for short.

5. Some of the developments which have occurred after thepublication of the Article included issuance of a memorandum dated21.05.2007 by the Ministry of External Affairs on the basis of thecomplaint of accused No.12 by which explanation was sought as to whydisciplinary action should not be initiated against said officer “for sexualharassment of a woman at work place”.Response was filed by saidofficer on 31.05.2007 and finally by order dated 19.02.2009, disciplinaryauthority passed an order imposing cut of 20% in pension allowable tosaid officer on permanent basis. The order of the disciplinary authoritywas upheld by the Central Administrative Tribunal on 02.03.2010 andalso by the High Court vide order dated 26.07.2011.

6. In the meantime, on 24.03.2010,Complaint No. 584/1/2010 wasfiled by said officer against various persons including Mr. Aroon Purie(A-1), Mr. Saurabh Shukla (A-2), Mr. Parampreet Singh Randhawa(A-3), Mr. Sharat Sabharwal (A-4), Mr. Ashok Kumar Mukherji (A-8)and other accused. It was submitted inter alia that the Article wasdefamatory and as such the accused be proceeded against for havingcommitted offences punishable under various sections includingSections34, 120 B, 405, 468, 470, 471, 499, 501 and 502 ofthe Indian Penal Code,1860[2]. Some of the averments made in the complaint were as under:

“… Accused No. 01 herein, Mr. AroonPurie, Editor-in-Chief ofthe newsmagazine titled INDIA TODAY published by thecorporate entity titled “LIVING MEDIA INDIA LTD” with itsregistered office at “1-A HAMILTON HOUSE, CONNUGHTPLACE, NEW DELHI 110001” for printing and publishing, in itsprinted issue dated 30/04/2007, a false story of sexual harassmentagainst the Complainant, a senior-level officer of the Ministry ofExternal Affairs (now retired), based on unsubstantiated,unverified, fabricated and malicious information, having beenwritten and filed by the said Newsmagazine’s Correspondent Mr.Saurabh Shukla, Accused No. 02 herein, in complicity with and atthe behest of Accused Nos. 03 to 12, named hereunder, as wellas splashing the false and defamatory story all over the worldthrough the misuse of the internet, and the World electronicnetwork, as defined in the law of information technology, with thepermanent availability, till date, of the scandalous/defamatorymaterial on the Internet vide its website www.indiatoday.com AB

C

D

E

F

G

H

causing complainant’s defamation, grave loss and injury of hispersonal and social reputation, mental torture, agony, pain and asteep deterioration of his health.

A

03. That this complaint is limited to the totally false, fabricated,unsubstantiated unverified, malicious and defamatory story writtenBand filed by Mr. Saurabh Shukla, Accused No. 2, the correspondentof the weekly newsmagazine titled INDIA TODAY, whosereports, writings and activities are under the control and supervisionof Mr.Aroon Purie, Accused No. 1, the Editor-in-Chief of thenewsmagazine INDIA TODAY, who exercised full control onthe selection of the said defamatory story in the newsmagazineCINDIA TODAY’S issue dated 30[th] April, 2007, contents of which were read world wide and were also splashed on the internet videwebsite www.indiatoday.com. The defamatory story is stillcontinuing as part of the archives of the said websitewww.indiatoday.com and, thus, the defamation of the complainantDand the damage and loss caused to his reputation is continuing tillthe date of lodging this report for action against the offenders andthe guilty.

*********

06. That it is clear from the facts narrated in the 20-page enclosureEto this complaint that the defamatory publication was thehandiwork of Accused nos. 03 to 12, acting with common intention,to brief the correspondent. Accused No. 02, Mr. Saurabh Shukla,of the newsmagazine INDIA TODAY about the false complaintof sexual harassment by Accused No. 12, a local employee of theFConsulate General of India at Edinburgh to defame the applicantthrough the media and the criminal role played by each of them,at the relevant time, warrants a thorough investigation by the lawenforcement agency for appropriate action as may be deemed fitand proper within the parameters of law as laid down in the Codeof Criminal Procedure, and, once the charges against them areGframed, in terms of the appropriate sections of the Indian PenalCode.

*********

15. That for their criminal acts of omission and commission, thehigh-ranking officers and middle-level officials allowed themselvesH

AROON PURIE v. STATE OF NCT OF DELHI & ORS.[UDAY UMESH LALIT, CJI]

to be misused and through the common intention of harming anddefaming the applicant through leaking the false, fabricated andcooked up information in the media – vide the published article inthe weekly newsmagazine INDIA TODAY dated 30/04/2007 andits splashing through internet through their websitewww.indiatoday.com the false and unsubstantiated allegation ofsexual harassment against the complainant even before any showcause notice was issued to the complainant by the Ministry ofExternal Affairs and thus caused the Complainant grave loss ofreputation and defamation.

The complainant then prayed for reliefs as follows:

“(1) To take cognizance of the offences committed and admit thiscomplaint against accused persons arrayed as Accused Nos. 01to 12 in this complaint, record the statements of the witnesseswhose names and statuses are listed in the enclosures and summonthe accused persons, who may be put on trial and punished inaccordance with law;

(2) To invoke its powers under Section 156(3) of the Code ofCriminal Procedure and order investigation by police authorities,who has the necessary infrastructure for this purpose, underSections 34, 120B, 405, 468, 470, 471, 499, SOU S 502 of theIndian Penal Code, 1860 and under Sections 65, 66 and 67 of theInformation Technology Act, 2000 against the accused for initiation[sic] of criminal proceedings and trial before this Hon’ble Court;”

7. Therole ascribed to each of the accused was summed up byMetropolitan Magistrate, New Delhi District, Patiala House Court, NewDelhi vide order dated 20.04.2013 as under:

“9. Ld. Counsel for the complainant has further submitted thatwhile accused No.1 and 2 are the Editor in Chief andCorrespondent of India Today who are directly responsible forthe publication of the defamatory story against the complainant.The remaining accused persons i.e. accused No.3, 4, 8, 12 werein conspiracy with accused No.1 and 2 and were instrumental inthe publication of the impugned story which was based on a falsecomplaint filed by accused No.12 in the office of Indian HighCommission at London. Ld. Counsel for the complainant hasargued that involvement of accused No.3,4,8,12 is established from AB

C

D

E

F

G

H

Athe fact that although the complainant had been simply recalledfrom his then place of posting at Edinburgh vide order dated08.3.2007 and it had not been mentioned in the said order that anycomplaint filed by accused No.12 against the complainant waspending investigation or that said complaint was he reason behindpremature recall of complainant Om Prakash Bhola. However,Bthe news article dated 30.04.2007 had mentioned that thecomplainant had been recalled from his place of posting inEdinburgh due to pendency of a complaint of sexual misconductmade against him by a local employee. It has been argued onbehalf of the complainant that although the complainant was servedCwith the show cause notice. That is memorandum on 21.05.2007by the Ministry of External Affair whereby he had been asked toexplain the allegations made against him by accused No.12.However, the news report was published prior to even the serviceof the said show cause notice upon him. Therefore, the staff ofIndia Today News Magazine could not have had the knowledgeDabout the pendency of the complaint of A12 against the complainanteven before the service of show cause notice upon the complainantthat is on 30.04.2007, the date of publication of alleged news reportalthough the complainant had been served with the show causenotice to explain allegations of sexual misconduct made againstEhim by accused No.12 after a lapse of about 21 days from thedate of publication of the said news report i.e. on 21.5.2007.

8. The Metropolitan Magistrate found sufficient material toproceed against Accused 1,2,3,4,8 and 12 for the commission of offencespunishable under Sections 500, 502 read with Section 120 B of the IPC.FThe operative part of the order was:

“After considering the materials placed on record by thecomplainant and the arguments advanced by learned counsel forcomplainant in the light of the aforecited observations made byHon’ble Supreme Court of India in the decided case of BalrajGKhanna &Ors. vs. Moti Ram 1971 SCC (Crl) 647, Smt. Nagawwavs. Veraana Shivallngappa Konjaligi & Ors. 1976 SCC (Crl) 507and M.N. Damani, vs. S.K. Sinha and other 2001 Cr. L.J. 2571SC, I am of the considered opinion that the material on record isprime facie sufficient to proceed against the accused number 1,2, 3, 4, 8 and 12 be accordingly summoned on filing of PF onH05.07.2013.

9. Being aggrieved by the aforestated summoning order, A-1, Editorin Chief of INDIA TODAY news magazine, preferred Criminal M.C.No. 3492 of 2019 while A-2, the author of the Article preferred CriminalM.C. No.1762 of 2014 and public servants from the Ministry of ExternalAffairs preferred Criminal M.C. No.4636 of 2013; all under Section 482of the Code of Criminal Procedure, 1973[3 ]seeking quashing of thesummoning order dated 20.04.2013 as well as Complaint No.584/1/2010filed by the officer in question.

10. These three petitions were taken up together by the HighCourt. After hearing learned counsel for the parties, the High Courtdidnot find any ground to interfere. It, therefore, dismissed all the petitions.During the course of its judgment, the High Court observed:

“28. The ingredients of section 499 IPC clearly point out towardsthe imputation published in any form which also include newspaper.In case the petitioner is seeking the protection of an exceptionunder Section 499 IPC that stage is yet to come, meaning therebythe submissions made by the petitioners are not applicable at thisstage. The conduct of the petitioner, since was allegedly responsiblefor selection of the articles for publication and had knowledge ofthe fact the publication of an unsubstantiated story will irreparablyharm and damage the reputation of the complainant/respondentNo. 2, still went ahead and got the article published as a chiefeditor on 30.04.2007. …

35. Thus, the allegations and counter allegations made by the partiesraise disputed question of facts and cannot be dwelled into by thisCourt under Section 482 Cr.P.C.

36. At this stage we need to see only the contents of the complaint.The evidence of the accused cannot be considered at this stage.”

11. We have heard Mr. K.V. Viswanathan, learned senior counselfor A-1,Ms. Aishwarya Bhati, learned Additional Solicitor General ofIndia appearing for public servants, namely;A-3, A-4 and A-8 and Mr.Hrishikesh Baruah, learned counsel for A-2; while the submissions onbehalf said officer i.e., the original complainant were advanced by Mr.R. Sathish, learned counsel.

12. It is submitted by Mr. K.V. Viswanathan, learned senior counselthat A-1 has been Editor-in-Chief of the news magazine INDIA TODAY; 3 “the Code”, for short.

AB

C

D

E

F

G

H

Athat the presumption under Section 7 of the Press and Registration ofBooks Act, 1867[4 ]would get attracted in case of an Editor and not withrespect to an Editor-in-Chief. It is further submitted that in order tomake A-1 liable for the Article, the involvement of A-1 beyond the mereallegation about the capacity held by him as Editor-in-Chief, had to bemade with clarity. There being no such allegation or averment, A-1 wasBentitled to the relief as prayed for.

13. Ms. Bhati, learned Additional Solicitor General has submittedthat the public servants were not involved with the publication of theArticle at any stage. Whatever actions the public servants had taken,were in the nature of due and prompt reporting of events to the higherCauthorities, so that appropriate action could be taken by such authorities.The acts committed by the public servants would thus be fully protectedand cannot amount to commission of any offence.

14. Mr. Hrishikesh Baruah, learned counsel for A-2 has sought toadopt the submissions of Mr. K.V. Viswanathan, learned senior counselDappearing for A-1 and submitted that due care was taken before writingthe Article including asking said officer for his response.

15. Mr. R. Sathish, learned counsel for said officer has submittedthat at best, the case pleaded by the appellants would be one claimingbenefit of any of the exceptions to Section 499, IPC and as observed byEthe High Court, the proper stage to go into such issues would be at thestage of trial and not through petition under Section 482 of the Code.

16. In K.M. Mathew vs. K.A. Abraham & Ors.[5], the appellant inthe lead matter was the Chief Editor of Malayalam Manorama. Relyingon Section 7 of the 1867 Act, it was contended on his behalf that thereFbeing another person, who was an Editor of said publication, said Editoralone could be charged for the offence under Section 500 of the IPC inview of the statutory presumption under Section 7 of the 1867 Act. Thesubmission that because of non-mentioning of “Chief Editor” in Section7, said appellant would be entitled to the relief, was rejected by thisGCourt, observing, inter alia, that the complainant had specifically allegedthat said appellant had knowledge of the publication and that he wasresponsible for such publication. Paragraphs 8, 9, 10, 14, 15 and 16 ofthe decision are as under: - 4 “1867 Act”, for short.H5 (2002) 6 SCC 670.

AROON PURIE v. STATE OF NCT OF DELHI & ORS.[UDAY UMESH LALIT, CJI]

“8. Section 7 of the Press and Registration of Books Act, 1867reads as follows:

“7. Office copy of declaration to be prima facie evidence.—In any legal proceeding whatever, as well civil as criminal, theproduction of a copy of such declaration as is aforesaid, attestedby the seal of some court empowered by this Act to have thecustody of such declaration, or, in the case of the editor, a copyof the newspaper containing his name printed on it as that ofthe editor shall be held (unless the contrary be proved) to besufficient evidence, as against the person whose name shallbe 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 saiddeclaration may be) of every portion of every newspaperwhereof the title shall correspond with the title of the newspapermentioned in the declaration or the editor of every portion ofthat issue of the newspaper of which a copy is produced.”

9. The expression “editor” has also been defined in Section 1 ofthe Act as under:

“1. (1)***

‘Editor’ means the person who controls the selection of thematter that is published in a newspaper:”

10. It is also relevant to quote Section 5(1) of the Act:

“5. Rules as to publication of newspapers.—No newspapershall be published in India, except in conformity with the ruleshereinafter laid down:

(1) Without prejudice to the provisions of Section 3, everycopy of every such newspaper shall contain the names ofthe owner and editor thereof printed clearly on such copyand also the date of its publication:

14. A conjoint reading of these provisions will go to show that inthe case of publication of any newspaper, each copy of thepublication shall contain the names of the owner and the editor A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

who have printed and published that newspaper. Under Section 7of the Act, there is a presumption that the editor whose name isprinted in the newspaper as editor shall be held to be the editor inany civil or criminal proceedings in respect of that publication andthe production of a copy of the newspaper containing his nameprinted thereon as editor shall be deemed to be sufficient evidenceto prove that fact, and as “editor” has been defined as the personwho controls the selection of the matter that is published in anewspaper, the presumption would go to the extent of holding thathe was the person who controlled the selection of the matter thatwas published in the newspaper. But at the same time, thispresumption contained in Section 7 is a rebuttable presumptionand it will be deemed as sufficient evidence unless the contrary isproved. Therefore, it isclear that even if a person’s name is printedas editor in the newspaper, he can still show that he was not reallythe editor and had no control over the selection of the matter thatwas published in the newspaper. Section 7 only enables the courtto draw a presumption that the person whose name was printedas editor was the editor of such newspaper, if the publicationproduced in the court shows to that effect.

15. The contention of the appellants in these cases is that theyhad not been shown as Editors in these publications and that theirnames were printed either as Chief Editor, Managing Editor orResident Editor and not as “Editor” and there cannot be anycriminal prosecution against them for the alleged libellouspublication of any matter in that newspaper.

16. The contention of these appellants is not tenable. There is nostatutory immunity for the Managing Editor, Resident Editor orChief Editor against any prosecution for the alleged publication ofany matter in the newspaper over which these persons exercisecontrol. In all these cases, the complainants have specificallyalleged that these appellants had knowledge of the publication ofthe alleged defamatory matter and they were responsible for suchpublication; and the Magistrates who had taken cognizance of theoffence held that there was prima facie case against theseappellants. It was under such circumstances that the summonseswere issued against these appellants.”

17. It is thus clear from this decision that though the presumptionunder Section 7 is available with regard tothe Editor, even a Chief Editorcan be proceeded against if the facts so justify. In the concerned cases,there were specific and sufficient allegations about the roles played bysaid Chief Editor and other similarly situated persons from the connectedmatters.

18. We now turn to the question: whether the benefit of any of theexceptions to Section 499 of the IPC can be availed of and on the strengthof such exceptions, the proceedings can be quashed at the stage whenan application moved under Section 482 of the Code is considered?

19. In Jawaharlal Darda & Ors. Vs. Manoharrao GanpatraoKapsikar & Anr.[6], the reporting made by a newspaper about theproceedings in the Legislative Assembly touching upon the issues ofmisappropriation of Government funds meant for certain projects, wasthe subject matter of complaint alleging defamation. The decision showsthat the article being accurate and true reporting of the proceedings ofthe House, which was reported in good faith in respect of conduct ofpublic servants entrusted with public funds intended to be used for publicgood, the protection was extended and the power under Section 482 ofthe Code was utilised. Paragraph 5 of the decision is as under: - “5. It is quite apparent that what the accused had published in itsnewspaper was an accurate and true report of the proceedings ofthe Assembly. Involvement of the respondent was disclosed bythe preliminary enquiry made by the Government. If the accusedbona fide believing the version of the Minister to be true publishedthe report in good faith it cannot be said that they intended toharm the reputation of the complainant. It was a report in respectof public conduct of public servants who were entrusted withpublic funds intended to be used for public good. Thus the factsand circumstances of the case disclose that the news items werepublished for public good. All these aspects have been overlookedby the High Court.”

20. Similarly, in Rajendra Kumar Sitaram Pande vs. Uttam[7], areporting made to a superior officer alleging misconduct on the part ofcomplainant was taken to be completely protected by exception 8 to 6 (1998) 4 SCC 112.

7 (1999) 3 SCC 134.

A

B

CD

E

F

G

H

ASection 499 of the IPC and the proceedings were quashed. The relevantportion from paragraph 7 of the reported decision is as under: - “7. … Under such circumstances the fact that the accused personshad made a report to the superior officer of the complainant allegingthat he had abused the Treasury Officer in a drunken state whichBis the gravamen of the present complaint and nothing more, wouldbe covered by Exception 8 to Section 499 of the Penal Code,1860. By perusing the allegations made in the complaint petition,we are also satisfied that no case of defamation has been madeout. In this view of the matter, requiring the accused persons toface trial or even to approach the Magistrate afresh forCreconsideration of the question of issuance of process would notbe in the interest of justice. On the other hand, in our consideredopinion, this is a fit case for quashing the order of issuance ofprocess and the proceedings itself. …”

21. It is thus clear that in a given case, if the facts so justify, theDbenefit of an exception to Section 499 of the IPC has been extended andit is not taken to be a rigid principle that the benefit of exception can onlybe afforded at the stage of trial.

22. Similarly, the law laid down in K.M. Mathew[8], which hassubsequently been followed, is to the effect that though the benefit ofEpresumption under Section 7 of the 1867 Act is not applicable so far asChief Editors or Editors-in-Chief are concerned, the matter would berequired to be considered purely from the perspective of the allegationsmade in the complaint. If the allegations are sufficient and specific, nobenefit can be extended to such Chief Editor or Editor-in-Chief.FConversely, it would logically follow that if there are no specific andsufficient allegations, the matter would stand reinforced by reason ofthe fact that no presumption can be invoked against such Chief Editor orEditor-in-Chief.

23. In light of these principles, if we consider the assertions andGallegations made in the complaint, we find that nothing specific has beenattributed to A-1, Editor-in-Chief. He cannot, therefore, be held liablefor the acts committed by the author of the Article, namely, A-2. Theallegations made in the complaint completely fall short of making outany case against A-1.

H8 supra at footnote No.5.

24. With regard to the role ascribed to A-2, it must be stated atthis stage that as an author of the Article his case stands on a differentfooting. Whether what he did was an act which was justified or notwould be a question of fact to be gone into only at the stage of trial.

25. Insofar as the public servants are concerned, they are notprimarily responsible for the Article and their responsibility, if at all, isonly to the extent that they either reported something touching upon thecomplaint made by A-12 or in their capacity as public servants, reportedsomething to their seniors. Going by the law laid down by this Court inRajendra Kumar Sitaram Pande[9], their actions are completelyprotected.

26. In the circumstances, we accept the appeals insofar as A-1and the public servants (A-3, A-4and A-8) are concerned and set asidethe summoning order, as well as, quash Complaint No.584/1/2010 lodgedagainst them. We,however, reject the appeal preferred by A-2.

Ordered accordingly.

Devika Gujral

Appeals disposed of.

9 Supra at footnote No.7.

A

B

C

D

E

F

G

H