The New Nation - Internet Edition

High Court Division

(Criminal)

Sharif Uddin Chaklader-J.

And

Sheikh Abdul Awal-J.

Criminal Miscellaneous Case

No. 9003 OF 2004

(An application uls 561A of the Code of Criminal Procedure, 1898.)

Shamsul Alam Selim alias Sheikh Selim

alias Anik Chowdhury ………t Accused-Petitioner.

Vs.

The State and another t Opposite Parties.

For the Petitioner : Mr. Md. Shamim-ul-Alam, Advocate.

For the Opposite Parties : No one appears.

Judgment: December 12, 2006

Code of Criminal Procedure, 1898-

Section 561A- Quashment of proceeding at the stage before framing charge is not permissible

Penal Code, 1860-

Sections 500/501/502- Offence of defamation by publication of false and malicious news-

Freedom of press does not afford any immunity of publication of false and scandalous news and views Proceedings cannot be quashed on the basis of defence plea-

When there is prima-facie truth of the allegations, the proceedings cannot be quashed. Nor such proceedings become invalid merely because the complainant did not send any rejoinder to the news paper against the news item.

Besides, it also appears that the charge of the case has not yet been framed and therefore, we do not find any valid ground for quashing the impugned proceeding by invoking our inherent jurisdiction under section 561A of the Code of Criminal Procedure as the accused petitioner still has an opportunity to invoke the provisions under section 241-A of the Code of Criminal Procedure which provides for an alternative remedy ttttttt (Para 10)

Here it may be mentioned that freedom of press has been guaranteed under Article 39 of the Constitution subject to certain restrictions including offence of defamation. A journalist cannot take shelter under the cloak of freedom of press after committing an offence including one of defamation by publishing false and malicious news or views ………….(Para 11)

Be that as it may, it is by now well settled that on the basis of the defence plea or materials the criminal proceeding should not be stifled before trial when there is a prima facie case for going to the trial. No interference is therefore called for with the impugned proceeding t (Para 12)

Judgment

SHEIKH ABDUL AWAL-J: This Rule was issued on an application under section 561A of the Code of Criminal Procedure calling upon the District Magistrate, Chuadanga as well as opposite party No. 2 to show cause as to why the proceeding of C.R. Case No. 545 of 2003 under sections 500/501/502 of the Penal Code now pending in the Court of learned Magistrate, 1st Class, 'Ka' Anchal, Chuadanga should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

2. Facts, in short, are that on 19.10.2003 one Solaiman Haque Joardar as complainant (opposite party No.2) filed a petition of Complaint in the Court of Magistrate, 1st Class, 'Ka' Anchal, Chuadanga against the accused Sarder Ali Hossain, Editor, Protidin Khash Khabar, Chuadanga and 2 others. In the petition of complaint, it has been alleged that the complainant petitioner comes from a very respectable family in Chuadaanga. The father of the complainant was landlord and renowned businessman since British period and his brothers and sisters are highly educated and have been working in higher post in Bangladesh and out of Bangladesh. The complainant is a founder of Chuadanga District Chatra League and freedom fighter. He is also Secretary of Bangladesh Awami Leage, Chuadanga District Committee as well as social worker in the locality. The complainant opposite party is also a well established businessman. Seeing the social and political position as well as reputation of the complainant opposite party No.2 the accused persons became jealous of him and in order to lower down the prestige and position of the complainant opposite party No.2 in the eye of the people at large, they published a false, concocted and defamatory news in their local newspaper named "Dainik Khash Khabor" dated 18.09.2003 under the "‡mvjvqgvb nK †mjy‡bi Aemi bvU‡Ki †gwKs †g Aj‡iwW wdwbm" and on 10.10.2003 also published a news under the caption ‡mjyb Zzwg Kvi? AvIqvgxjx‡Mi bv Ab¨ Kv‡ivi It has been further alleged that for publishing such false, baseless, malicious and defamatory news hampered the prestige and position of the complainant in the society. Hence, the case under section 500/501/502 of the Penal Code.

3. On receipt of the petition of complainant the learned Magistrate examined the complainant under section 200 of the Code of Criminal Procedure and took cognisance against the accused petitioner and others under sections 500/ 501/502 of the Penal Code.

4. Thereafter, on 18.10.2002 the accused petitioner and another appeared in the Court of Magistrate, 1st Class, Chuadanga and obtained bail.

5. Being aggrieved and dissatisfied with the said proceeding the accused Shamsul Alam Selim alias Aniket Chowdhury as petitioner moved this Court seeking quashment of the proceeding under section 561 A of the Code of Criminal Procedure and obtained the present Rule.

6. Mr. Md. Shamim-ul-Alam, the learned Advocate appearing for the accused petitioner submits that there is no ingredients under sections 500/501/ 502 of the Penal Code. The learned Advocate in the course of argument referring the compliant petition and other materials on record including supplementary affidavit submits that the opposite party No2 as complainant filed a petition of complaint on 19.10.2003 in the Court of learned Magistrate, 1st Class, Chuadanga accusing the Editor, Executive Editor and a columnist namely "Anik Chowdhury" of the local daily "Protidin Khash Khabor" for the news item published in the said daily on 18.09.2003 under the caption ‡mvjvBgvb nK ‡mjy‡bi Aemi bvU‡Ki †gwKs †Mg Aj‡iWx wdwbm and another news item under the caption. ‡mjyb Zywg Kvi? AvIqvgxjx‡Mi bv Ab¨ Kv‡ivi published in the same daily on 10.10.2003, whereupon, the learned Magistrate took cognisance against all the 3 accused persons including Aniket Chowdhury but subsequently, the learned Magistrate by order dated 05.09.2004 issued warrant of arrest in the name of the accused petitioner Shamsul Alam Selim alias Sheikh Selim alias Aniket Chowdhury in place of Aniket Chowdhury without assigning any reason, although there is no allegation against this petitioner Aniket Chowdhury in the petition of complaint and as such the continuation of the impugned proceeding is liable to be quashed. Finally, Mr. Md. Shamim-ul-Alam submits that since the complainant did not send any rejoinder for the alleged news to the daily newspaper named "Protidin Khash Khabor" and 'hence the continuation of the proceeding is an abuse of the process of the Court which is liable to be quashed.

7. No one appears for the complainant opposite-parties We have perused the application along with connected papers as annexed therewith and considered the submissions made by the learned Advocate for the accused petitioners. It appears that the opposite party No.2 on 19.10.2003 filed a petition of complaint in the Court of Magistrate, 1st Class, Chuadanga accusing the Editor, Executive Editor of the local daily "Protidin Khash Kliabor" including the present petitioner (columnist) for publishing malicious, concocted and defamatory news under the caption ‡mvjvBgvb nK ‡mjy‡bi Aemi bvU‡Ki †gwKs †Mg Aj‡iWx wdwbm and ‡mjyb Zywg Kvi? AvIqvgxjx‡Mi bv Ab¨ Kv‡ivi in the daily newspaper named "Protidin Khash Khabor" dated 18.09.2003 and 10.10.2003 respectively, whereupon the Magistrate took cognisance against the accused petitioner and others under sections 500/501/502 of the Penal Code. It is also disclosed from the fact as stated in the complaint petition that the alleged imputation dated 18.09.2003 and 10.10.2003 is causing harm to the complainant in the society.

8. Now, we are to see the basic question whether the impugned publications scandalising the complainant come within the mischief of an offence of defamation as laid down in section 499 of the Penal Code.

9. From a plain reading of the impugned 2 caption news dated 18.09.2003 and 10.10.2003 and the allegations made in the complaint petition we have no hesitation to hold that there are sufficient ingredients of the offence of defamation inasmuch as prima-facie it appears that the alleged imputation was published with intent to harm the reputation of the complainant opposite party No.2. As regards the submission of the learned Advocate that the complainant opposite party No. 2 did not send any rejoinder claiming that the contents of the impugned publications was false, which is a disputed question of fact as well as defence plea which can be decided by the trial Magistrate after taking evidence.

10. On going through the materials on record, it is also found that the Magistrate on examining the complainant under section 200 of the Code of Criminal Procedure took cognisance against the 3 (three) accused persons namely, 1) Sarder Ali Hossain, Editor Protidin Khash Khabor, 2) Marium Sheli, Editor, Protidin Khash Khabor, 3) Anik Chowdhury, reporter of the local daily " Protidin Khash Khabor" and subsequently, the complainant filed an application stating the correct address and correct name of the present accused petitioner and whereupon, the learned Magistrate issued warrant of arrest in the correct name and address of the petitioner by order dated 05.09.2004. So, the contention raised by Mr. Md. Shamim-ul-Alam appears to be devoid of substance.

Besides, it also appears that the charge of the case has not yet been framed and therefore, we do not find any valid ground for quashing the impugned producing by invoking our inherent jurisdiction under section 561A of the Code of Criminal Procedure as the accused petitioner still has an opportunity to invoke the provisions under section 241-A of the Code of Criminal Procedure which provides for an alternative remedy.

11. Here it may be mentioned that freedom of press has been guaranteed under Article 39 of the Constitution subject to certain restrictions including offence of defamation. A journalist cannot take shelter under the cloak of freedom of press after committing an offence including one of defamation by publishing false and malicious news or views.

12. Be that as it may, it is by now well settled that on the basis of the defence plea or materials the criminal proceeding should not be stifled before trial when there is a prima facie case for going to the trial. No interference is therefore called for with the impugned proceeding.

13. In the result, the Rule is discharged.

The order of stay granted by this Court at the time of issuance of the Rule stands vacated. The trial Magistrate, Chuadanga is directed to proceed with the trial expeditiously in accordance with law.

Communicate the order at once.