RAJ MANI CHAUHAN,J. - (1.) LEARNED counsel for the petitioners files supplementary affidavit, which is taken on record. Heard learned counsel for the petitioners and learned Additional Government Advocate for the State as well as perused the documents available on record. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the petitioners with the following prayers: "It is most respectfully prayed that the Hon'ble Court may kindly be pleased to quash the impugned summoning order dated 23.2.2010 passed in Criminal Complaint Case No. 2211/2010, under Sections 499, 500, 501 and 502 IPC, P.S. Hazratganj pending before the court of A.C.J.M. VIII, Lucknow. It is further prayed that the Hon'ble Court may kindly be pleased to quash the Criminal Complaint No. 2211/2010 filed under Sections 499, 500, 501 and 502 IPC."
(2.) THE submission of learned counsel for the petitioners is that the Opposite Party No. 2-Sri Ramveer Upadhya, S/o Sri Ram Charan Uppadhya, State Minister for Power, U.P. Government, R/o 16, Kalidas Marg, Lucknow has filed a complaint against the petitioners and three others mainly with the allegation that the accused-petitioners got a news item published in the daily newspaper Rashtriya Sahara that the opposite party no. 2 accepts bribe from the engineers. Learned counsel submits that as per complaint, the Petitioner No. 1-Jaibrat Roy is Managing Director of Sahara India Mass Communication while he is Managing Editor of the Sahara India Mass Communication and the Petitioner No. 2-Sushanto Roy as Chief Executive Officer in Shara India Mass Communication. The petitioner no. 1 being Managing Editor of Sahara India Mass Communication is not liable for any defamatory publication in the Rashtriya Sahara Newspaper in view of the law laid down by the Apex Court in the case of K.M. Mathew Vs. State of Kerala and another reported in AIR 1992 Supreme Court 2206 as well as by this Hon'ble court in the case of Jaibrat Roay, Chief Editor, Rashtriya Sahara Vs. State of U.P. reported in [2002 (2) JIC 805 (All)]. The petitioner No. 2 being Chief Executive Officer of the Sahara India Mass Communication (Rashtriya Sahara Hindi Daily Newspaper) has got no concern with the publication of the news. The petitioners, therefore, prima facie cannot be prosecuted. The complaint as against the petitioners is, therefore, not maintainable and liable to dismissed. Learned counsel further submits that whatever defamatory news has been published in Rashtriya Sahara Newspaper against the opposite party no. 2, it has been published against him in his official capacity as Minister. Learned counsel submits that Section 199 (2) of the Code lays down specific provision for taking cognizance of offence for defamation i.e. under Section 500 IPC committed against high dignitaries and public servants. The Section 199 (2) provides that when an offence is committed against the President of India, Vice President of India, Governor of a State, Administrator of a Union territory or a Minister of the Union or of a State or of affairs of the Union or of a State in respect of his conduct in the discharge of his public functions where the above high dignitaries are defamed by any publication, the court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor. As per provision of Section 199 (2) of the Code, the complaint should have been filed by the Public Prosecutor but in this case the opposite party no. 2 who is Minister himself has filed a complaint which is illegal. Therefore, the cognizance taken by the learned Magistrate on the basis of complaint filed by the opposite party no. 2 is illegal and liable to be quashed. Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate vehemently opposed the petition and argued that although Section 199 (2) of the Code provides for specific provision for taking cognizance of defamation against high dignitaries as mentioned in the Sub-section (2) of Section 199 of the Code but Sub-section (6) of Section 199 of the Code provides that the affected person may also file complaint before the concerned Magistrate competent to take cognizance of the offence. There is no bar that the aggrieved person cannot file complaint. The learned Magistrate on the basis of statement of the complainant recorded under Section 200 of the Code and the statements of witnesses recorded under Section 202 of the Code has found, prima facie, evidence in support of commission of offence against the accused consequently he by the impugned order has summoned the accused which does not suffer from any illegality. Considered the submissions of learned counsel petitioners and learned A.G.A. From a perusal of the Sub-section (2) of Section 199 of the Code, it appears that there is specific provision for taking cognizance for the offence of defamation committed against the high dignitaries or public servants if they are defamed for any act alleged to have been done by them in discharge of their official capacity. In such cases the Session Judge, on the basis of complaint moved by the Public Prosecutor, can take cognizance but Sub-section (6) of Section 199 of the Code provides that the person against whom offence of defamation has been committed, may file complaint before the Magistrate competent to take cognizance of the offence on such complaint.
(3.) KEEPING in view the submissions of learned counsel for the petitioners and learned A.G.A.? the petition involves arguable point with regard to ascertain prima facie responsibility of the petitioner no. 1 and 2 for publication of the defamatory news as well as the legality of taking cognizance by the learned Magistrate. Therefore, issue notice to the opposite party no. 2 to file counter affidavit within three weeks. Petitioners may file rejoinder affidavit, if any, within one week thereafter. List immediately thereafter. Till then no coercive steps will be taken by the concerned Magistrate as against the petitioners.;