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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF , NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Criminal Petition No.933/16 and 941/16

Criminal Petition No.933/16 Mehboob Mukter Son of Late Giasuddin Mukter Resident of Village-Moirabari, PO & PS-Moirabari, District-Morigaon(Assam) Pin-782126

...... Petitioner 1. State of Assam 2. Md. Abul Hussain Son of late Abdul Khalek Village –Tatikata Pather PO & PS- Moirabari, Pin-782126

………… Respondents

Criminal Petition No.941/16 1. Nitya Borah, Editor, Asomiya Pratidin MRD Road, Chandmari,, District- Kamrup (M)Assam, Pin-781003 Resident of House No.25, Bye Lane No.5, Gandhibasti, PO-Silpukhuri,Guwahati, District- Kamrup (M)Assam, Pin-781003

2. Jatin Choudhuary, Publisher Asomiya Pratidin MRD Road, Chandmari,Guwahati, District- Kamrup (M)Assam, Pin-781003 Resident of House No.2, Dakhin Gaon Tiniali, 2

PO-Kahilipara, Guwahati, District- Kamrup (M), Assam, Pin-781019...... Petitioners

1. State of Assam 2. Md. Abul Hussain Son of late Abdul Khalek Village –Tatikata Pather PO & PS- Moirabari, Pin-782126

………… Respondents

BEFORE HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

For the Petitioner(s) : Mr. M K Hussain,Advocate in both the petitions For the respondent No.1 : Ms. S.Jahan,Addl.P.P.Assam,

For respondent no.2 : Mr. A.I.Uddin, Advocate

Date of hearing : 25.5.2017

Date of judgment : 12.06.2017

JUDGMENT & ORDER (CAV)

All above petitioners have challenged the same criminal proceeding pertaining to CR Case No. 561/16 U/S 501/502/120 IPC pending before the learned JMFC, Morigaon by way of filing the present petitions U/S 482 CrPC and prayed for quashing the aforesaid proceedings. As such both the petitions are taken up together for disposal by way of this common order.

2. The petitioner namely Mehboob Mukter is the local correspondent of the Assamese vernacular namely, Asomiya Protidin and other petitioners Nitya Bora and Jajtin Choudhury are Editor and publisher of the said newspaper. The respondent Md. Abul Hussain lodged a complaint on 21.7.2016 before the learned CJM, 3

Morigaon bringing allegation of defamation against the petitioners for publication of the news item in the said newspaper, Asomia Pratidin dated 6.7.2016. It was alleged in the complaint petition that his settlement has been stopped due to publication of news item in the newspaper which is not based on records.

3. According to the petitioners, on the basis of a WT Message dated 5.7.2016 communicated by the Chief Executive Officer,(CEO), Morigaon Zila Parishad the opposite party / complainant was not allowed to take over the possession of the Moirabari bi-weekly market. On the basis of materials available on record and the WT message dated 5.7.2016 the local correspondent/petitioner Mehboob Mukter prepared a news item in the evening of 5.7.16 and forwarded the same for publication and accordingly the news item was published on 6.7.2016. Thereafter the opposite party lodged the complaint with the allegation that due to publication of the news item his settlement has been stopped by the authority. The petitioners state that the CEO, Morigaon Zila Parishad vide order dated 2.7.2016 offered the settlement of Moirabari bi-weekly market to opposite party and accordingly he was asked to complete the formalities for taking over the possession of the market. Lateron Circle Officer, Laharighat Revenue Circle communicated a Whatsapp message on 4.7.16 to the CEO, Morigaon Zila Parishad intimating that the land valuation certificate has been issued wrongly by the Laharighat revenue circle in favour of the person who stood as guarantor of Babul Hussain. Thereafter the CEO, Morigaon Zila Parishad communicated a WT Meesage on 5.7.16 intimating all concerned that the settlement process of Moirabari bi-weekly market has been kept in abeyance. The petitioners further submit that the complaint lodged by the opposite party that his settlement has been stopped due to the publication of the news items is not based on records as because settlement was stopped on 5.6.16 and the news item was published on 6.7.16. Therefore, the publication of the news could not influence the authority in the settlement process as alleged in the complaint petition. It is the contention of the petitioner that the news item was published basing on materials on record and on the basis of WT Message dated 5.7.16 and therefore no criminal liability can be attributed to the accused petitioners and the above criminal proceeding is liable to be quashed.

4. Thus it is the case of the petitioners that they have published the news item on the basis of the WT Message dated 5.7.16 vide Annexure-(D & I in the respective) petitions and the documents on records. The petitioner Mehboob Mukter in his petition 4

has annexed certain documents like NIT issued by office of the Moirabari Anchalik Panchayat for settlement of market/ghats and fishery under Moirabari Anchalik Panchayat for the financial year 2016-17 (vide Annexure-D),. Though the opposite party required to submit land document for the current year 2016 but the opposite party has submitted documents pertaining to the year 2015 like land revenue clearance certificate (vide annexure-E), NOC of the land (Annexure-F),and land valuation certificate (Annexure-G). It is stated that the surety of the opposite party namely, Md. Faizur Rahman has shown himself to be owner of 19 Bighas of land whereas he is owner of 11 Bighas 11 Lechas of land vide Annexure-H Jamabandi copy.

5. For proper appreciation of the matter, let us first examine the WT Message dated 5.7.16 which was sent by CEO Zilla Parishad Morigaon addressed to BDO-cum- Moirbari AP and the relevant portion is reproduced below:

“...... Ref this office letter no...... dated 2.7.16 regarding settlement of Moirabari bi-weekly bazaar for the year 2016-17 with effect from 1.7.2016 in favur of Abul Hussain,..... the Circle Officer, Lahorighat has informed over Whatsapp message that the land valuation certificate has been wrongly issued by Laharighat Revenue Circle in favour of the persons who stood as a guarantor of Abul Hussain and a formal report in this regard being submitted by him to the matter and pending such report by him regarding the said land valuation certificate, he has requested to treat the matter of settlement of Moirabari bi- weekly bazaar in abeyance. In view of above, the offer of settlement in favour of Abul Hussain for Moirabari bi-weekly market vide letter under reference is hereby suspended until further instruction. As such you are hereby instructed to run the said market departmentally until further instruction...... ”

6. The aforesaid news publication was made on 6.7.2016 referring to the said WT message and thereafter a complaint was lodged by the opposite party with the allegation that the petitioners herein have published the false and fabricated news that the land documents of the guarantor submitted by the complainant are false and after publication of said false, fabricated news, Zila Parishad kept abeyance of his settlement order and created doubt regarding land document of guarantor submitted by the 5

complainant along with the tender papers. Moreover, after publication of the said news the public as well as other people known to him treated him as a cheater and his dignity has been lowered in the public esteem.

5. Now let us reproduced the news item that was published on 6.7.16, which read as follows:

“MARKET SETTLED WITH TENDERER WHO SUBMITTED FALSE DOCUMENTS:REACTION AT MOIRABARI Pratidin Special Correspondent, Moirabari, 5th Juy: Dominance of Dr. NazrulIslam, MLA, Laharighat LAC is continuing in Morigaon Zilla Parishad. Due to dominance of Dr. Nazrul Islam, Moirabari Bi-Weekly Market has been settled with tenderer who submitted false documents which creates huge reaction. As per allegation, Moirabari Bi-Weekly Market has been settled by the Zilla Parishad with tenderer namely Abul Hussain with monthly bid value submission of false documents with the tender papers. The tenderer is required to submit encumbrance free certificate of the current year but he submitted the same of previous year. Excluding this, the Circle Office issued land valuation certificate in favour of Faizur for 11 Bigha land under Hugoltoli kisam covering Dag No.36 and Patta No.58 amounting to Rs.16,46,666/-. After submission of complaint in this regard, the authority assured that the tender of Abul Hussain will be cancelled but the tenderer is a relative of Dr. Nazrul Islam and as such, how the Chairman of Zila Parishad namely Shyam Das settled the market with tenderer who submitted false documents, the conscious people are demanding a judicial enquiry: 6. It is evident that the same news was prepared by the special correspondent i.e.by Mehboob Mukter. After careful examination of WT Message as well as the news report it reflects that in the aforesaid message the CEO never indicated about falsity of document furnished by the opposite party as a tenderer and all that have been conveyed that the land valuation certificate has been wrongly issued by the Laharighat Revenue Circle and in that case it is the authority liable who issued wrong certificate. By the said WT Message the CEO has however directed for kept abeyance of the settlement issued in favour of respondent no.2. 6

7. Of course, one part of allegation of the respondent no.2 that his settlement has been kept abeyance only after publication of notice is of no consequence as it was already directed to be stayed in the Message itself. But however, as regards the other publication of the news that because of filing of false document by the respondent no.2 his tender has been rejected, is not a proper reporting of the matter, rather it has been made by the correspondent by his own creation and the same has been published by the other respondents, being the editor and publisher of the paper. Further it is to be noted that the said WT Message was issued on 5.7.2016 and on the very next date it was published in the newspaper and how the local correspondent collected all those documents which was neither referred in the message nor provided to him. Situated thus, such a detailed statement prepared by the local correspondent is not at all proper while the matter is pending for enquiry before the appropriate authority. Unless and until proper finding come up from the appropriate authority, such publication on the part of accused petitiones certainly have great impact in the society which is enough to affect the status of the respondent no.2.

8. The learned counsel for the respondent has submitted that the aforesaid WT Message was challenged by way of filing W.P(C) No.4270/16 and the Hon’ble Court by order dated 2.3.17 has set aside the aforesaid WT Message dated 5.7.16. The relevant copy of the order has been submitted before this Court, which is perused.

9. I have considered the submissions of the learned counsel for both the parties and considered the matter on record. The petitioner Mehboob Mukter herein has admitted about the preparation of the news item by himself and he was very much well aware about the content of WT Message where falsity of document has not been mentioned. However, he has prepared the statement which is not in conformity with the message whereas he has knowledge and reason to believe that such imputation will harm the reputation of the complainant/respondent no.2. The complainant in his complaint petition has made specific allegation as against the petitioner Mehboob Mukter who is the local resident and on the basis of such statement prepared by him, the news was published by the other accused petitioners being editor and publishers. All of them are responsible for the publication of the aforesaid news which has the element of imputation towards the complainant/respondent no.2. 7

10. In Shobana Bhartia and ors –vs- NC Delhi and another, reported in (2001) JCC 327 it has been held that in view of the provisions of Press and Registration Act, 1867 particularly Section 7, unless contrary is proved the person declared as Printer, Publisher and Editor of the Newspaper are presumed to be responsible for the content of the newspaper. As regards the question as to whether any person other than the Printer, Publisher and Editor can be prosecuted for a defamatory article it has been held that besides persons declared as Editor, Printer and Publisher of a newspaper, only such person could be prosecuted for an action of defamation against whom specific and clear allegation has been made in the complaint that either he was responsible for selection of the defamatory matter or has personal knowledge about the content of defamatory matter. In addition, it must be averred in the complaint that such person had the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the complaint.

11. The same principle has been endorsed in recent case of Indrajit Lankesh-vs- K.T.Bhanu Kumar, reported in (2015) 4 SCC 598. In the present case as has been discussed above, despite having specific information as per the WT Message the petitioners have published such a statement in a twisting manner and as per discussion above all petitioners are responsible. Situated thus, their challenge to the cognizance taken by the Court is not maintainable. Resultantly invoking of provision 482 CrPC by this Court is unwarranted. The power under Section 482 should not be exercised to deter a legitimate prosecution.

The Hon’ble Apex Court in Dhanalakshmi v-Ra. Prasanna Kumar, reported in 1990 sup SCC 686 it has been held as below:

“3. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 481. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the 8

case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivoulous or vexatious, in that event there would be no justification for interference by the High Court”.

12. In 2014 10 SCC 616 N.Sundaram –vs- P K Paunraj & another it has been held that power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of the process of the Court and to secure the ends of justice. The High Court should refrain from giving a prima facie decision unless there is compelling circumstances to do so. It is only, if taking the allegation and compliant as they are, without adding or subtracting anything, if no offence is made out, only then the High Court would be justified in quashing the proceedings.

13. On overall perusal of materials placed before this Court, makes out a prima facie case as against the accused petitioners which is required to be decided in course of trial. Both the petitions are found devoid of merit and accordingly dismissed.

JUDGE

Nandi