H.K. Dua and Ors. Vs. Mrs. Bharti Arora
IN THE HIGH COURT OF PUNJAB AND HARYANA
Crl. Misc. No. 47785-M of 2005
Decided On: 01.04.2008
Appellants: H.K. Dua and Ors.
Vs.
Respondent: Mrs. Bharti Arora
Hon'ble Judges/Coram:
V.K. Sharma, J.
JUDGMENT
V.K. Sharma, J.
1. Petitioners H.K. Dua, Editor-in-Chief and other Editorial Board members of The Tribune have filed this petition under Section 482 of the Code of Criminal Procedure for quashing of Criminal Complaint No. 135 dated 16.7.2005 titled as Mrs. Bharti Arora v. Kulwinder Sandhu and others filed under sections 499/500/501/502 read with section 34 IPC pending in the court of Chief Judicial Magistrate, Karnal as well as the summoning order dated 16.7.2005 and subsequent proceedings arising therefrom.
2. The complainant Mrs. Bharti Arora filed a complaint on the allegations that Kulwinder Sandhu the Press Correspondent of The Tribune Chandigarh, the other accused, i.e. the petitioners herein had printed false and defamatory news items on 4.4.2005, 10.4.2005 and 23.4.2005.
The news items published read as under:
"Case registered but child bride awaits rescue" was published on page 7 Column No. 7 of the aforesaid Daily THE TRIBUNE on 4th April, 2005, the offending excerpts of which are as under:
(i) It seems the attitude of the civil and police authorities towards this evil act has been casual at best.
(ii) Unfortunately the District Administration has taken the interest into this incident of Child Marriage that was undoubtedly of grave concern for the social as well as political scientist. Neither District Magistrate Shri Shyamal Misra nor Superintendent of Police Bharti Arora had made efforts to get the girl from her in-laws house".
3. The second news item under caption "Laxity in probe into child marriage irks CM" was also published on page No. 7, column No. 1 of the aforesaid Daily The Tribune on 10th April, 2005. The offending excerpts of which are as under:
"It has been alleged that both the District Magistrate of Karnal, Mr. Shyamal Mishra, and the Superintendent of Police, Mr. Bharti Arora, were trying to hush up the investigation process after registering the FIR under Sections 3, 4, and 5 of the Child Marriage Restraint Act, 1929, on a report submitted by the Child Development Project Officer, Ms. Ramesh Nagpal".
The third news item captioned:
"S.P. Flouting High Courts Directive" was published on Page No. 7 Column No. 5 of the aforesaid Daily The Tribune on 23rd April, 2005, the offending excerpts of which are as under -
"The Karnal S.P., Ms. Bharti Arora, has been flouting the directive of the Punjab & Haryana High Court, Chandigarh with regard to the use of Red Light atop her official vehicle and black films on window panes, with impunity since her posting a few weeks ago. The Tribune has got a photograph of the vehicle (HNK-9) of the S.P., bearing the Red Light and Black films without the permission of the authorities concerned ".
4. The case of the complainant was that the news items referred to above were false, scandalous and per se defamatory and it hurt the feeling of the complainant and has lowered her image among her relatives, friends and general public at large. The complainant also reacted to the above said news items and wrote a letter dated 24.4.2005 to accused No. 2 H.K. Dua which reads as under:-
"It is highly regretted that your esteemed paper The Tribune, Chandigarh through your Correspondent Sh. Kulwinder Sandhu, of Karnal has got published the above news that the undersigned is flouting the Directive of Punjab and Haryana High Court with regard to the use of Red Light atop her official vehicle and black window panes and that too without consulting the undersigned or her subordinates. Whereas, the fact is that there is specific permission with regard to the use of tinted glasses as well as Red Light on my official car No. HNK-9. The necessary paper in this regard may be seen in my office on any working day. The said News Item is so scandalous and defamatory and it has hurt my feelings and lowered my image in the general public, which cannot be compensated in terms of money.
I, therefore, call upon you to either publicly apologize in respect of above reporting or I shall be constrained to file legal proceedings in the Court of law without unnecessary delay"
5. The case of the complainant, therefore, is that after receiving the said letter the same was not published verbatim rather in their own way and language which reads as under:
"Reacting to a news item "SP flouting High Court directive" published in these column on April 23 Karnal's Superintendent of Police (SP) Bharti Arora has clarified that she has permission to use tinted glasses and Red Light on her official car". In a communication to The Tribune, she has stated that there is specific permission with regard to the use of tinted glasses as well as Red Light on my official car HNK 9. The necessary paper in this regard may be seen in my office on any working day. Describing the news item as scandalous and defamatory she has claimed that report had hurt her feelings and lowered her image in the general public".
6. It is the case of the complainant that the said news item was published in such tactful and mischievous way that general public formed a wrong impression that it is only the complainant and none else who described the said news item as scandalous and defamatory. This publication added fuel to the fire.
7. In support of the allegations the complainant examined herself as CW 1 and in support of her case reiterated the allegations made in the complaint and also produced on record the documentary evidence by way of Ex.C.5 an order passed by Shri C.P. Bansal, Additional Director General of Haryana authorising the use of tinted glasses on the official vehicle No. HNK-9. The order passed reads as under:
"1. Shri Vikas Arora, IPS, Superintendent of Police, Karnal is hereby authorised to use tinted glasses on the official vehicle No. HNK-9 as per directions issued by the Hon'ble Punjab & Haryana High Court, Chandigarh in CWP No. 7639-96.
2. The tinted glasses must comply with the Motor Vehicle Rule (100) of Motor Vehicle Act, 1989 & ensure 70% transparency for front & rear glasses & 50% transparency for side window glasses. They must comply with the Indian Standards No. (IS- 2553 (Part-2) 1992).
3. The sticker issued must be pasted at the front windscreen.
4. The validity of this permission is till 01.06.2005.
5. This permission is non-transferable".
She also examined Shri Bal Kishan Kamboj, Advocate CW 2, Raj Kumar CW 3, Om Parkash CW 4, Ram Sarup CW 5 by way of preliminary evidence.
8. Learned trial court was pleased to summon the petitioners along with other accused vide order dated 16.7.2005, the operative part of which reads as under:
" After scanning the oral as well as documentary evidence placed on record, it is firmly established that the news items published by the accused are certainly to harm and to lower down the reputation of the complainant and these news items also come within the purview of Sections 500/501/34 IPC. After going through the news items and news appears (news paper ?), it is crystal clear that these news items have been published by the accused persons. It is also proved that an FIR was registered on 2.4.2005 pertaining to alleged incident, but the said news items were published on 4.4.2005 and onwards without verifying the truthfulness from the concerned official. A letter was sent to the accused by the complainant in respect of the publication of the said news items, but they did not bother to give any reply, rather they published the said letter in the Tribune in their own style in order to lower down the reputation of the complainant. It is not disputed that the complainant is the head of the police department at Karnal and such type of news items have lowered down her reputation in the estimation of their subordinate. After going through the news items, there is general opinion of the publish (public ?) that "An ill physician cannot cure others". Keeping in view the above said facts, there are sufficient reasons to believe that all accused have committed an offence punishable under Sections 500/501 read with section 34 of IPC. Now, they be summoned under these Sections for 8.8.2005 on filing of PF and copies of complaint".
9. On 1.9.2005 this Court was pleased to pass the following orders:-
"Learned counsel for the petitioner states, inter alia, that so far as news items Annexures P.3 and P.4 are concerned, the same cannot be termed as defamatory in nature as the same were published in good faith and amounts to an opinion regarding performance of functions by a public servant and, thus, squarely fall within the ambit of 2nd exception to Section 499 IPC. In relation to news item Annexure P.5, it is sought to be explained that the same has been published on account of `an error of judgment' which appears to have been committed due to over zealousness shown by the local Correspondent. Learned counsel for the petitioners further states that a suitable news item regretting the publication of news item Annexure P.5 will be published before the next date of hearing.
Having regard to the aforementioned stand taken by the learned counsel for the petitioners, let notice of motion be issued for 27.9.2005.
Meanwhile, the petitioners may appear before the trial Court through counsel on the date fixed i.e. 3.9.2005. However, they are exempted from personal appearance before the trial court. The learned trial court may also adjourn the complaint case to a date after 27.9.2005".
10. In pursuance to the order dated 1.9.2005 passed by this Court, regret was published on September 19, 2005 which reads as under:-
"No rules flouted by former SP
CHANDIGARH, SEPTEMBER 19, 2005
Apropos of the news-item "SP flouting High Court directive" published in these columns on April 23, it has come to Light that the then Superintendent of Police (SP), Karnal, Ms. Bharti Arora, was legally permitted to use tinted glasses and red Light on her official car. She had the necessary permission issued by the Haryana Government, which allowed her to put Red Light atop her official car.
The report was, therefore, incorrect. The publication of the news-item is regretted.
- Editor"
11. Mr. R.S. Cheema, senior counsel appearing on behalf of the petitioners contended that even if the allegations levelled in the complaint are taken on their face value still no offence under Section 499 of the Code is made out as news items No. 1 and 2 referred to above are protected under exception Second to Section 499 of the Code which reads as under:
"499. Defamation - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter expected (excepted?) to defame that person.
First exception......
Second exception Conduct of any person touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct and no further."
12. The contention of Mr. R.S. Cheema, learned senior counsel appearing on behalf of the petitioners was that the imputations in the news items are to the effect that the accused have not been arrested nor any steps have been taken to restore the minor child and of non-action on the part of the District Magistrate and the Superintendent of Police. The names of the District Magistrate Shri Shyamal Misra and Superintendent of Police Ms. Bharti Arora, were mentioned in the news items.
13. The contention of learned senior counsel appearing on behalf of the petitioners, therefore, was that the allegations made were in good faith with respect to the conduct of a public servant in discharge of his public function and the allegations do not proceed any further and therefore, do not, in any way, constitute an offence even if taken on their face value.
14. Mr. R.S. Cheema, learned senior counsel appearing on behalf of the petitioners in support of this contention placed reliance on the judgment of Hon'ble Supreme Court in the case of Jawaharlal Darda and others v. Manohar Rao Ganpat Rao Kapsikar and another MANU/SC/0251/1998 : 1998 (2) RCR (Cri) 455 : (1998) 4 SCC 112, wherein Hon'ble Supreme Court has been pleased to lay down as under:-
"4. As we have stated earlier, the news item was published on 4.2.1984. The complaint in that behalf was filed by the complainant on 2.2.1987. The news item merely disclosed what happened during the debate which took place in the Assembly on 13.12.1983. It stated that when a question regarding misappropriation of government funds meant for Majalgaon and Jaikwadi was put to the Minister concerned, he had replied that a preliminary enquiry was made by the Government and it disclosed that some misappropriation had taken place. When questioned further about the names of persons involved, he had stated the names of five persons, including that of the complainant. The said proceedings came to be published by the accused in its Daily on 4.2.1984. Because the name of the complainant was mentioned as one of the persons involved and likely to be suspended he filed a complaint before the learned CJM alleging that as a result of publication of the said report he had been defamed.
5. It is quite apparent that what the accused had published in its newspaper was an accurate and true report of the proceeding of the Assembly. Involvement of the respondent was disclosed by the preliminary inquiry made by the Government. If the accused bona fide believing the version of the Minister to be true published the report in good faith it cannot be said that they intended to harm the reputation of the complainant. It was a report in respect of public conduct of public servants who were entrusted with public funds intended to be used for public good. Thus the facts and circumstances of the case disclose that the news items were published for public good. All these aspects have been overlooked by the High Court".
15. On the other hand Mr. Gagandeep Wasu, learned counsel appearing on behalf of the respondent contended that Second exception to Section 499 of the Code is not applicable to the present case as it is yet to be proved on record that the publication was made in good faith which can only be done after the parties are allowed to lead evidence. The contention of Mr. Gagandeep Wasu, learned counsel appearing on behalf of the respondent, therefore, was that on the basis of preliminary evidence led by the complainant the petitioners have been ordered to be summoned being the members of the Editorial Board and it is for them to show that the publication was in good faith. In the absence of evidence in defence this court should not scuttle the investigation at this preliminary stage in exercise of the powers under Section 482 of the Code of Criminal Procedure especially when the petitioners have an alternative remedy of filing revision against the summoning order.
16. In support of this contention Mr. Gagandeep Wasu, learned counsel appearing on behalf of the respondent placed reliance on the judgment of this court in the case of Palwinder Raj Singh v. The State of Punjab, 2003 (1) RCR (Cri) 198 (P&H) , wherein this court was pleased to lay down as under:-
"4. After hearing the counsel for the parties and perusing the record, I am of the opinion that this petition is to be dismissed on the score that order dated 2.12.1999 (copy at Annexure P-9) is a revisable order. When an alternative remedy is available to the petitioner to impugn the order, then petition under Section 482 Cr.P.C., is not maintainable. In this regard, reliance may be placed on the case titled Balabhadra Dash and another v. State of Orissa and others MANU/OR/0299/1991 : 1991 Cri.L.J. 2457 in which it has been held as under:
"Inherent power is wide in nature and Section 482 in Cr.P.C. having been made to secure ends of justice or to present (prevent?) abuse of the process of Court, such power is to be exercised with great restraint. Wider would be the power, greater should be the restraint. Ordinarily, trial of an accused in a criminal prosecution is to be concluded under the provisions of Criminal Procedure code and High Court would be reluctant to conclude the same at an interim stage. Therefore, prayer for quashing charge or taking cognizance ought not to be entertained in a routine manner and unless High Court is satisfied that there is abuse of process of Court or ends of justice demand it, such prayers ought not to be entertained. Even if, such prayer are entertained, all endeavours should be made to examine if the abuse of powers of Court can be eradicated without bringing the proceeding to an end in the midway. Where accused would be put to such inconvenient position that subsequent examination of these questions would materially affect him which would be irreparable in nature, High Court can for reasons to be recorded in that regard, examine the materials to interfere with the continuance of trial. Therefore, where all the accused persons had an opportunity to advance submissions before the Magistrate that materials on record do not call for framing of charge against them, High Court declined exercise of inherent powers for quashing cognizance. In matters where same relief can be given by a subordinate authority normally higher authority should not exercise its powers to give same relief".
17. Mr. Gagandeep Wasu, learned counsel appearing on behalf of the respondent also contended that the ground on which powers under Section 482 of the Code of Criminal Procedure can be exercised to quash the criminal proceedings basically are:-
(1) Where the allegations made in the FIR or complaint even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, and
(3) Where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Acts to the institution and continuance of the proceedings.
The contention of learned counsel appearing on behalf of the respondent is that only if one of the three conditions stipulated above are fulfilled then only this Court can exercise powers under Section 482 of the Code of Criminal Procedure and the said power have to be exercised in rare case and with great circumspection.
18. In support of this contention learned counsel for the respondent has placed reliance on the judgment of Hon'ble Supreme Court in the case of Union of India v. Prakash P. Hinduja and another MANU/SC/0446/2003 : 2003 (3) RCR (Cri) 556 : 2004 (1) Apex Cri 325 : AIR 2003 SC 2612.
19. On consideration of the matter, I find force in the contentions raised by the learned senior counsel appearing on behalf of the petitioners. In this case it would be seen that the news item Nos. 1 and 2 published in the news paper are with respect to the conduct of the public servant in discharge of her public function and has not gone any further. Thus, the case squarely falls under exception Second to Section 499 of the Code.
The petitioners are not the authors of news items but are the members of Editorial Board.
20. Even though the plea of immunity would not be available to the petitioners and summons have been issued against the petitioners on the allegations that the publication was done with their knowledge and thus, the presumption of motive can be drawn against the petitioners. However, it may be noticed here that as in the present case no offence under Section 499 IPC is made out against the petitioners because of Second exception to Section 499 IPC the continuation of the proceedings against the petitioners therefore, would be nothing but misuse of the process of the court. However, I would be failing in my duties if I do not mention that the mentioning of the name of the District Magistrate and the complainant could have been easily avoided. Nevertheless, merely because the names are mentioned would not take out the case from exception Second to Section 499 IPC.
21. The contention of the learned counsel for the respondent, therefore, cannot be accepted as the case in hand would squarely fall in the parameter laid down by the Hon'ble Supreme Court holding that where allegations made in the FIR or complaint even if taken on their face value and accepted in their entirety would not prima facie constitute any offence or make out the case against the accused and as the power to quash the complaint and subsequent proceedings is only with this court, the respondent cannot take benefit of the availability of remedy of revision against the summoning order.
22. As regards the third news item is concerned the contention of learned senior counsel appearing on behalf of the petitioners was that notification No. 24/17/81-3T(II) attached as Annexure P.18 that the petition does not cover the case of the complainant enabling her to use Right Light on her vehicle. The contention of learned senior counsel appearing on behalf of the petitioners was that as per letter No. 24/17/81-3T(II) attached as Annexure P.18 permission to use Red Light on the vehicle used by the complainant was first time granted on 23.8.2005 as would be clear from the said letter wherein following dignitaries have been allowed to use the Red Light:-
"1. Governor, Haryana, Chief Minister/All Cabinet Ministers/State Ministers/Deputy Speaker/Speaker Vidhan Sabha. Haryana/Chief Parliamentary Secretary/Parliamentary Sectary/Deputy Chairman, Planning Board, Haryana/Leader of Opposition.
2. Hon'ble Chief Justice Punjab & Haryana High Court, Register of Punjab & Haryana High Court.
3. State Election Commissioner, Haryana.
4. Chief Secretary, Haryana, Financial Commissioners & Principal Secretaries/Commissioners & Principal Secretaries/Commissioner and Secretary, Head of Departments of Government of Haryana.
5. Principal Secretary/Addl. Principal Secretary to CM/Deputy Principal Sec. to CM/OSD to CM/Press/Media Advisor/Political Advisor to CM.
6. Director General of Police, Haryana, Addl. DGP/IGP/DIG (CID)/DIG of all Ranges/DG of Home Guard/IG Home Guard and DIG level officers of Home Guards.
7. Advocate General, Haryana, Chandigarh.
8. Chairman, Haryana Public Service Commission.
9. District & Sessions Judge/Commissioners of the Division/Deputy Commissioner/Superintendent of Police.
10. Accountant General (Audit). Accounts, Haryana.
11. All members of the Parliament/All Members of Legislative Assembly (MLA) of Haryana Vidhan Sabha shall be entitled to use Red Light on one personal vehicle only."
23. The contention of Mr. R.S. Cheema, learned senior counsel appearing on behalf of the petitioners was that the news item was published prior to issuance of the letter dated 23.8.2005 and thus, on the said date there was no permission to use the Red Light on the vehicle of Superintendent of Police. The contention of learned senior counsel was that prior to the issuance of the said notification dated 9.8.2002 only following dignitaries were allowed to use the Red Light:-
"1. Chief Minister/Speaker Haryana Vidhan Sabha/All Ministers/Deputy Speaker and Chief Parliamentary Secretary/Parliamentary Secretary/Deputy Chairman, State Planning Board, Haryana.
2. Hon'ble Chief Justice/Hon'ble Judges/Registrar of Punjab & Haryana High Court, Commission of Inquiry instituted by the Government of Haryana, Shri J.S. Chahal, Retd. Judge, Inquiry Commission, Haryana, President, Haryana State Consumer Disputes Redressal Commission, Lok Ayukt, Haryana, State Election Commissioner, Haryana.
3. Chief Secretary/Commissioners & Principal Secretaries/Special Secretaries to Government, Haryana and Heads of Departments as are in the super time scale of IAS and Secretary, Haryana Vidhan Sabha.
4. Principal Secretary/Addl. Principal Secretary/Deputy Principal Secretary/OSD/Press Advisor/Political Advisor/Political Secretary/Addl. Political Secretary to the Chief Minister, Haryana.
5. Director General of Police, Director General of Police/Inspector General of Police/DIG (CID)/DIGs of all Ranges/Director General of Home Guard/Inspector General Home Guard and DIG level officers of Home Guards.
6. Advocate General, Haryana, Chandigarh.
7. All Chairmen of Boards/Corporations, Chairman Bureau of Public Enterprises Chairman, Swatantara Sainik Samman Samiti/Chair SC/BC Welfare Commission, Chairman HPO 20 Point Programme/Chairman and Members of Haryana Electricity Regulatory Commission, Chairman/Members of Haryana Public Service Commission.
8. All members of Haryana Staff Selection Commission one personal/Govt. Vehicle.
9. Vice Chancellors of all the Universities in Haryana.
10. District & Sessions Judges/President of District Consumer Forum in Haryana. All Judges of the State of Haryana.
11. Commissioners of Divisions/Deputy Commissioners/Addl. Deputy Commissioners/Sub Divisional Magistrate, Civil Surgeons, City Magistrates.
12. Resident Commissioner, Haryana Bhawan, New Delhi Car numbers (I) HR- 26G- 1001 (ii) HR-26N-4546 (iii) HR- 30-C-0020 Ceilo and (v) HR-31-3J-0015.
13. All vehicles of Raj Bhawan; Chief Minister office including the security vehicles; Police; Transport; Prohibition, Excise & Taxation; Mines & Geology Departments & VIPs car numbers (I) HR-36A-0087 (ii) HR-5B-0005 (iii) HR-04-004 (iv) HR-31B-0014 (v) HR-03-2598; VVIPs car number (vi) HYA-43 (vii) HR-01-0001 (viii) HR-32-A-0058 for PSCM & (ix) HR-10D-003 for CM residence/Chief Secretary to Govt. Haryana (RVA Branch, VIP duty vehicle) (x) Cielo Car No. HR-05G-0062 transferred from Lotteries Department to the Secretariat car pool for use of VIPs.
14. Advisor Civil Aviation, Chief/Senior Executive Pilot, Electronic Engineer of Civil Aviation Department, Haryana; Principal Chief Conservator of Forest, Additional Principal Chief Conservator Forest; Director General of Health Services; Chairman of Haryana Vidyut Prasaran Nigam; Director, Pandit B.D. Sharma, PGI, Medical Science Rohtak, Commandant Railway Protection Force, Ambala.
15. Officers of Income Tax Department in the rank of Commissioner, Income Tax or above and the Chief Commissioner, Income Tax, Chandigarh for only official staff car within the State of Haryana; Members/Judges of Income Tax Appellate Tribunal; Central Revenue Building Maqbol Road, Amritsar, General Managers of the Telecom Circles of Haryana; Divisional Managers, Railway Ambala; Chief Project Manager Railway, Electrification Ambala Cantt; Sr. Regional Manager, Food Corporation of India, Haryana; Commissioner, Haryana Gurudwara Election Commission, Government of India; Accountant Generals (Audit & Accounts) Haryana.
16. All Chairman of Zila Prishads; Presidents of the Municipal Committees; Chairman Improvement Trusts in Haryana.
17. Honorary General Secretary, Haryana State Council for Child Welfare, Chandigarh and Red Cross Society, Haryana, Chandigarh.
18. Commanding Officer, Western Command Liaison Unit, Chandimandir in respect of following three vehicles:
1. HR-03D-1742 (Maruti Gypsy)
2. HR-03D-1741 (Maruti Gypsy)
3. HR-03D-3227 (Maruti Gypsy)
(II) The persons of the following categories shall be entitled to use Red Light on one personal vehicle only:
(I) All Members of Parliament of the Haryana State.
(II) All Members of Legislative Assembly (MLAs) of Haryana Vidhan Sabha, provided the Government has not provided them any official vehicle in any other capacity.
(III) Following persons/Vehicles as per Government detail are also allowed to use a Red Light on personal official vehicle:
1. Shri N.K. Kapoor, chairman, Tribunal Haryana Chandigarh (Car No. HR010B- 0056).
2. Prem Sant Shri Hshadur Chand Vakil Sahib Ji, Souda Roohani Satsang Trust (Regd) Jagmalwalia, Sirsa (Vehicle No. HR-24D/5411-Jeep)".
24. Mr. Gagandeep Wasu, learned counsel appearing on behalf of the respondent, however, contended that under Column No. 13 of the said notification the complainant was entitled to use the Red Light as the word used is police which would cover Superintendent of Police.
25. However, it may be noticed here that in the present case there was a specific permission granted by the Additional Director of Police dated 2.6.2004 permitting the complainant to use Red Light on Vehicle No. HNK-9.
26. The contention of the learned senior counsel appearing on behalf of the petitioners that the complainant was not entitled to use the Red Light cannot be accepted except to a limited extent as to whether it was within the competence of Additional Director General of Police to permit the use of the Red Light. Thus, it has to be observed that the publication of the said news item was not with responsibility. However, the motive of malice cannot be attributed to the petitioners. Though on Item No. 3 this court could have permitted the trial court to proceed with the matter but it may be noticed that while issuing notice of motion this Court had permitted the petitioners to regret the publication of news item. In pursuance thereto the regret already stands published.
27. The conduct of the accused persons subsequent to publication of defamatory news can also be taken into consideration by the court. It is within the power of the accused to mitigate his offence or even aggravate his guilt. In the civil action the defendant can mitigate the damages by tendering apology or express contribution against the person may lessen the gravity of offence. A better retraction or expression of remorse without reservation is recognised as an extenuating factor and has the effect of blunting the edge of the offence though such an effect cannot be attained by an half-hearted apology or reluctant and tardy amends. For sufficiency of retraction, it should manifest an honest intention to repair the harm done to the injured reputation of the complainant. Reparation to the defamed person must not be merely colourable. The accused or the defendant, as the case may be, should admit that the charge was unfounded made without prior opinion and express regrets for it.
28. It may be noticed that in view of the different notifications issued from time to time it can safely be presumed that the news items were not motivated or colourable. However, the petitioners herein who were members of the Editorial Board have expressed their regrets for publication by publishing the regret in their news paper, therefore, for the reasons referred to above their regret can be accepted by this court instead of forcing the petitioners herein to face trial and thereafter accept their regret.
29. Though the learned counsel for the respondent contested the plea of acceptance of regrets on the plea that the petitioners should face trial and this court should not exercise power under Section 482 Cr.P.C. to quash the proceedings on the basis of the regret published in pursuance of order of this court. The plea of the respondent could have only been accepted if a clear cut case was made out against the accused-petitioners. However, the facts and circumstances of this case permit this court to accept the regret published by the petitioners in news paper.
Consequently, this petition is allowed. The complaint and all the subsequent proceedings arising therefrom qua the petitioners herein are ordered to be quashed.