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CASE NO.:

Appeal (crl.) 688 of 2001

Special Leave Petition (crl.) 1875 of 2001

PETITIONER:

JOHN THOMAS

Vs.

RESPONDENT:

DR. K. JAGADEESAN

DATE OF JUDGMENT: 12/07/2001

BENCH:

K.T.Thomas, R.P.Sethi

JUDGMENT:

THOMAS, J.

Leave granted.

A renowned hospital in the Metropolis of Madras

(Chennai) has been caricatured in a newspaper as the

abattoir of human kidneys for trafficking purposes. When

the Director of the Hospital complained of defamation, the

publisher of the newspaper sought shelter under the umbrage

that the libel is not against the Director personally, but

against the hospital only and hence he cannot feel

aggrieved. The accused/publisher, who raised the objection

before the trial court, on being summoned by the court to

appear before it, succeeded in stalling the progress of the

trial by clinging to the said contention which the trial

magistrate has upheld. But the High Court of Madras

disapproved the action of the magistrate and directed the

trial to proceed. Hence the accused has come up to this

Court by filing the special leave petition. But after

hearing the learned senior counsel, who argued for the

appellant, we did not find the necessity to wait for the

respondent - complainant to reply to those arguments as the

appeal is only liable to be dismissed in limine.

The complainant (respondent in this) stated that he is

running a hospital as its Director under the name "K.J.

Hospital". He claimed to be the Honorary Overseer Adviser

of Royal College of Physicians and Surgeons of Glasgow in

UK. His grievance in the complaint is that a news item was

published by the "Madras Times" on 21.3.1991 containing

highly defamatory imputations against his hospital. The

said newspaper is a daily published and circulated by the

appellant as its editor. The passage which, according to

the complainant, is defamatory to him has been quoted in

the complaint. It is extracted below:

"It is stated that the hospital used to

stealthily deprive of its patients of one of

their kidneys when they were admitted for

minor operations. Women who were admitted

for caesarian operation had one of their

kidneys removed without their knowledge.

More than 120 women have so far been

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affected by this trading in kidneys. It is

reported that the kidneys were later

exported to Malaysia. The hospital has

engaged brokers to the lure in the needy

poor to part with one of their kidneys for a

hefty sum. The nefarious activity has been

going on for many months now."

So the complaint was filed by the respondent before

the Court of Metropolitan Magistrate for the offence under

Section 500 of the IPC. The magistrate, who took

cognizance of the offence, issued process to the appellant.

It seems, the appellant is interested in taking up his

defence and contentions only in a piecemeal manner. At the

first instance, he approached the High Court for quashing

the complaint on the ground that the magistrate ought to

have examined all the witnesses for the complainant before

issuing the process to the accused. The High Court

dismissed his petition and repelled his contention on that

score as per an order passed in Crl.O.P. No.2189/93.

Thereafter the appellant moved the trial court for

discharging him from the proceedings for which he raised

two other contentions. The first among them is that the

publication did not amount to defamation, second among them

is that "K.J. Hospital" is a private limited company

whereas the complainant is a private individual who had no

locus standi to file the complaint.

On the first contention, the trial magistrate found

that the imputations are "derogatory remarks about the

hospital". The learned magistrate upheld the second

contention for which he made the following observations:

"Even though the respondent himself admits

in his complaint that Dr. K. Jagadeesan is

the Director of K.J. Hospital, mere

admission by the complainant cannot give him

the status of Director of the hospital

without the Article of Association duly

registered in the Company Law Board under

Indian Companies Act. Therefore, onus is on

the respondent to prove that he is the

Director of K.J. Hospital, and he has the

locus standi to file this complaint. The

respondent has not discharged the onus that

he is the Director of K.J. Hospital and so

he has failed to prove that he has locus

standi in filing the complaint against the

petitioner."

The trial magistrate, on the above reasoning,

discharged the appellant as per its order dated 10.2.1995.

The complainant filed a revision before the High Court of

Madras challenging the aforesaid order of discharge. A

single Judge of the High Court reversed the order and

restored the criminal proceedings to reach its logical

culmination in accordance with law. It is the said order

of the High Court which the appellant/accused is

challenging now. The learned single Judge noticed that the

trial court has already recorded evidence of two witnesses

for the prosecution. He did not consider the points found

against by the trial court, instead he observed that the

trial court in a summons case cannot discharge the accused

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after passing over to the stage of evidence. According to

the learned single Judge, the accused should have filed the

application for discharge immediately after he entered

appearance and if he has not done so he could not do it

after the court has moved to the stage of evidence taking.

What the learned single Judge has stated on that aspect

reads as follows:

"If such an application is filed before the

court immediately after entering appearance

before commencement of the trial as

envisaged in Chapter XX Cr.P.C. the petition

is maintainable. But now, the stage has

passed and the evidence of two witnesses on

the side of prosecution was recorded and at

this stage in the absence of any provision

for discharge of the accused the magistrate

ought not to have discharged the accused and

he should have allowed the trial to flow in

accordance with the established procedure."

The appellant questioned the aforesaid view of the

learned single Judge on the strength of Section 258 of the

Code of Criminal Procedure (for short 'the Code'). It must

be pointed out that the offence under Section 500 of the

IPC is triable as a summons case in accordance with the

provisions contained in Chapter XX of the Code. Sections

251 to 257 of that Chapter deal with the steps to be

adopted from the commencement upto culmination of the

proceedings in summons cases. One of the normal rules in

summons cases is that once trial started, it should reach

its normal culmination. But Section 258 is included in

that chapter in the form of an exception to the aforesaid

normal progress chart of the trial in summons cases. It is

useful to extract the section here:

"258. Power to stop proceedings in certain

cases.- In any summons case instituted

otherwise than upon complaint, a Magistrate

of the first class or, with the previous

sanction of the Chief Judicial Magistrate,

any other Judicial Magistrate, may, for

reasons to be recorded by him, stop the

proceedings at any stage without pronouncing

any judgment and where such stoppage of

proceedings is made after the evidence of

the principal witness has been recorded,

pronounce a judgment of acquittal, and in

any other case, release the accused, and

such release shall have the effect of

discharge."

Summons cases are generally of two categories. Those

instituted upon complaints and those instituted otherwise

than upon complaints. The latter category would include

cases based on police reports. Section 258 of the Code is

intended to cover those cases belonging to one category

alone i.e. "summons cases instituted otherwise than upon

complaints". The segment separated at the last part of the

section by the words "and in any other case" is only a sub-

category or division consisting of "summons cases

instituted otherwise than upon complaints". That sub-

category is not intended to cover all summons cases other

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than those instituted on police report. In fact, Section

258 vivisects only "summons cases instituted otherwise than

on complaints" into two divisions. One division consists

of cases in which no evidence of material witness was

recorded. The section permits the court to acquit the

accused prematurely only in those summons cases instituted

otherwise than on complaints wherein the evidence of

material witnesses was recorded. But the power of court to

discharge an accused at midway stage is restricted to those

cases instituted otherwise than on complaints wherein no

material witness was examined at all.

The upshot of the above is that Section 258 of the

Code has no application to cases instituted upon

complaints. The present is a case which was instituted on

complaint. Hence the endeavour made by the accused to find

help from Section 258 of the Code is of no avail.

Shri Siva Subramaniam, learned senior counsel for the

appellant, contended that the imputations contained in the

publication complained of are not per se defamatory. After

reading the imputations we have no doubt that they are

prima facie libellous. The only effect of an imputation

being per se defamatory is that it would relieve the

complainant of the burden to establish that the publication

of such imputations has lowered him in the estimation of

the right thinking members of the public. However, even if

the imputation is not per se defamatory, that by itself

would not go to the advantage of the publisher, for, the

complaining person can establish on evidence that the

publication has in fact amounted to defamation even in

spite of the apparent deficiency. So the appellant cannot

contend, at this stage, that he is entitled to discharge on

the ground that the imputations in the extracted

publication were not per se defamatory.

The contention focussed by the learned senior counsel

is that the respondent, who filed the complaint, has no

locus standi to complain because he is only a Director of

K.J. Hospital about which the publication was made and that

the publication did not contain any libel against the

complainant personally. It is not disputed that the

complainant is the Director of K.J. Hospital. Explanation

2 in Section 499 of the IPC reads thus:

"Explanation 2.- It may amount to defamation

to make an imputation concerning a company

or an association or collection of persons

as such."

In view of the said Explanation, it cannot be disputed

that a publication containing defamatory imputations as

against a company would escape from the purview of the

offence of defamation. If the defamation pertains to an

association of persons or a body corporate, who could be

the complainant? This can be answered by reference to

Section 199 of the Code. The first sub-section of that

section alone is relevant, in this context. It reads thus:

"199. Prosecution for defamation.- (1) No

court shall take cognizance of an offence

under Chapter XXI of the Indian Penal Code

(45 of 1860) except upon a complaint made by

some person aggrieved by the offence."

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The collocation of the words "by some persons

aggrieved" definitely indicates that the complainant need

not necessarily be the defamed person himself. Whether the

complainant has reason to feel hurt on account of the

publication is a matter to be determined by the court

depending upon the facts of each case. If a company is

described as engaging itself in nefarious activities its

impact would certainly fall on every Director of the

company and hence he can legitimately feel the pinch of it.

Similarly, if a firm is described in a publication as

carrying on offensive trade, every working partner of the

firm can reasonably be expected to feel aggrieved by it.

If K.J. Hospital is a private limited company, it is too

farfetched to rule out any one of its Directors, feeling

aggrieved on account of pejoratives hurled at the company.

Hence the appellant cannot justifiably contend that the

Director of the K.J. Hospital would not fall within the

wide purview of "some person aggrieved" as envisaged in

Section 199(1) of the Code.

The learned senior counsel made a last attempt to save

the appellant from prosecution on the strength of the

decision of this Court in K.M. Mathew vs. State of Kerala

{1992 (1) SCC 217}. In that case prosecution against Chief

Editor was quashed for want of necessary averments in the

complaint regarding his role in the publication. That part

of the decision rests entirely on the facts of that case

and it cannot be imported to this case. It is pertinent to

point out, in this context, that the appellant did not have

any such point either when he first moved the High Court

for quashing the proceedings or when he moved the trial

court for discharge. Hence it is too late in the day for

raising any such point, even apart from non-availability of

that defence to the appellant on merits.

We, therefore, dismiss this appeal.