The New Nation - Internet Edition

High Court Division

(Criminal Revisional Jurisdiction)

Sharifuddin Chaklader J, Md Emdadul Haque

Judgment

March 19th, 2008

Emran Faruk Masum and othert.

tttPetitioners

vs

State and anothertt

ttttOpposite-Parties*k

Penal Code (XLV of 1860)

Sections 499 (Exception 4) and 500/34

Code of Criminal Procedure (V of 1898)

Section 561A

On considering to the newspaper report it appears that it does not publish the result of the decision of the Court, nor publish the judgment of the Court, nor is there any comment on the judgment itself but it highlighted the activities of the complainant that he, despite a decision of a competent Court, was merely going on selling the properties of the Waqf Estate thereby looted away or misappropriated huge money. Entire news item, as it appears, is made on an application by the rival Mutwalli of the complainant, taking the words of the rival Mutwalli as true without verifying the same, as such, Exception 4 to section 499 of the Code is of no help to the accused petitioners.

The Reporter and the Editor i.e. the accused petitioners, published the news item without taking care or without taking pain to find out whether the news sent to them by a party to the proceeding is correct or not. The contents of the news item can be thrashed out in Court where the appeal is pending. But the complainant became a prey of media trial and whatever the complainant achieved as a Professor of Rajshahi University has been shattered before his family, friends, relatives, colleagues, students and all. Since the charge has been framed, it is now a matter of trial. Rule is disechargedtt(16, 18 & 20)

Shahadat Hossain Chowdhury vs Atair Rahman, 48 DLR 176 ; PSV Iyer vs Commissioner of Sales Tax, Orissa, AIR 176 ; PSV Iyer Vs Commissioner of Sales Tax, Orissa, AIR 1960 Orissa 221 and Mitra Prakahshan Ltd vs Post Master General. UP Allahabad, AIR 1957 All 622 ref.

Mahbubey Alam, Advocate-For the Petitioners.

Mahmud Hasan,Advocate-For the Opposite Parties.

Judgment

Sharifuddin Chaklader J : This Rule, at the instance of the accused petitioners, Emran Faruk Masum and Abed Khan, District Correspondent and Editor of daily Jugantor, for quashment of the proceedings of CR Case No. 912 of 2005 under sections 500/34 of the Penal Code pending in the Court of learned Metropolitan Magistrate, Rajshahi.

2. Complainant alleges that by publishing a news item in daily Jugantor dated 8-7-2005, Annexure-'E', the accused petitioners, in fact, makes the complainant a culprit before the public at large and also the said news item damages the reputation of the complainant in the locality, before the students, professors, lecturers and staff of Rajshahi University.

3. From the complaint it appears that complainant described himself as retired Professor of Department of Botany of Rajshahi University and Mutwalli of Hamidullah Waqf Estate situated at Rajarampur of Nowabganj. He got appointment as Mutwalli on 7-10-1976 from the Administrator of Waqfs and performing the duty to the satisfaction of all. It has been further stated that complainant by the act of the accused petitioners lost his reputation in the society. After retirement from Rajshahi University, while he was staying in Rajshahi town, got the news published at page 16 of 'Jugantor' dated 9-8-2005 to the effect that Mutwalli of Hamidullah Waqf Estate was illegally selling the property of Waqf Estate and earning huge illegal money. It was been written that property worth Taka 2 crore have been sold illegally and the Mutwalli misappropriated the said money. It has been further written in the news item that learned Subordinate Judge in Other Suit No. 5 of 1998 by order dated 26-1-2007, set aside the permission of selling the property of the Waqf Estate, in spite of said order Dr Gousuzzaman, complainant, in connivance with some persons, sold the said land. In the complaint it has been stated that after publication of news item, when the complainant went to the Rajshahi University at 8-00 PM then all the teachers were looking at him in disgraceful manner and looking at him as if he is a culprit. The said news published in daily Jugantor is not correct as the complainant got permission from Administrator of Waqfs on 9-5-1995 for selling the property of Waqf Estate and selling of the property concluded on 24-12-1996. The said selling of property was made after it has been approved by the committee who settled the price of per katha land at Taka 50,000 and Taka 75,000. The Inspector of Waqf Administrator, Rajshahi is nomitoring the Estate affairs. It has been further stated that complainant deposited the sale proceeds in account No. 6923 maintained with Agrani Bank. Nawabganj Branch. The news report that property worth Taka two crore were sold and looted by the complainant is not correct. It has further been stated that against the judgment passed by the learned Subordinate Judge in Other Class Sit No. 5 of 1998, appeal ha been preferred before the High Court Division which is still pending in First Appeal No. 120 of 2000.

4. It appears from the Rule petition that complaint was examined thereafter, accused petitioners appeared and were enlarged on bail. Accused petitioners filed application under section 241A of the Code of Criminal Procedure but the said application was rejected and charge was framed against the accused petitioners under sections 500/34 of the Penal Code, on 29-4-2007.

5. Mr Mahbubey Alam, learned Advocate, appearing for the accused petitioner, submits that, in publishing the news item, accused petitioners acted bonafide as it appears from the news item that before publishing the said news item, the reporter contacted the complainant but the complainant refused to say anything to the reporter. Learned Advocate further submits that news item neither hampered nor was derogatory to the prestige and position of the complainant, as the said news item was published relying on the judgment and decree passed by a competent Court in Other Class Suit No. 5 of 1998 dated 26-1-2002 where it has been held that the complainant transferred Waqf land illegally. Learned Advocate further submits that accused petitioners are protected under Exception 4 of section 499 of the Penal Code and since the accused petitioners are protected under law, as such, they cannot be punished under section 500 of the Penal Code.

6. Learned Advocate for the petitioner relied on the decision of Shahadat Hossain Chowdhury vs Atiar Rahman 48 DLR 176.

7. On the other hand, Syed Shahidur Rahman, learned Advocate for the complainant opposite party, submits that, accused petitioner intentionally and deliberately with ulterior motive published the news item to damage the reputation of the complainant. Learned Advocate further submits that against the judgment of the learned Subordinate Judge, appeal is pending before the High Court Division. The learned Advocate further submits that accused petitioners committed the offence as they wil fully published the news item with imputation causing harm to the complainant as the accused petitioners knowing fully well that such imputation will harm the reputation of the complainant.

8. Before we go into the merit of the Rule, we express our resentment on the issuance of Rule and also on the conduct of the learned Advocate at whose instant the Rule was issued. The Rule contred round a news item published in daily Jugantor on 8-7-2005 but the said news item was neither quoted in the Rule petition, nor a paper clipping of the news item was produced nor the newspaper was produced at the time of issuance of Rule, but Rule was issued. However, when this matter was brought to the notice of Mr Mahbubey Alam, the learned Advocate, he expressed pardon for this mistake and placed before us a copy of 'Jugantor' paper, dated 8-7-2005 through a supplementary affidavit.

9. Let us quote the entire news caption from the newspaper :

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10. On a meticulous consideration of the news item Annexure-E, it appears to us it exceeds the limits of fair inference, legitimate comments and criticism and has been conceived in haste with irresponsible appreciation with the object to scandalise the complainant.

It appears that some scurrilous words have been used with the intention to defame the complainant before the public at large.

11. If Kutubul Alam has any grievance for selling the property of the Waqf Estate that was before filing of the Other Suit No. 5 of 1998 which is now a part of the appeal pending before the High Court Division. The said Kutubul Alam could bring those facts in the appeal pending before this Court in between the two brothers. It also appears that Money Appeal No. 2 of 2002 is also pending in between the two brothers before the learned Additional District Judge, Nawabgonj. This fact could be brought in that appeal too. But why in the newspaper?

12. We find that it has been written in the said news item that it was published upon an application filed by the 2nd Mutwalli of the Waqf Estate i.e. Kutubul Alam, the full brother of the complainant. It is apparent from the news item that despite permission for selling the property was set aside the complainant continued in selling the property. The accused petitioners i.e. the reporter or the editor of daily Jugantor, did not take pains to trace out whether any appeal is preferred from the said judgment passed by the learned Subordinate Judge. It appears an appeal is pending before the High Court Division, as such, we of the view, that the news item when published, the judgment of the learned Subordinate Judge is under scrutinisation before the High Court Division.

13. Newspapers in whatever form i.e. daily, weekly, periodically, monthly, are generally for circulation of news for public at large. The readers after reading a news item formulate opinion on the news item and generally people tend to receive or accept lucid news, particularly those which are made for creating rumours and root of bad reputation are ultimately found planted in rumours and nowadays rumours are generally circulated through news media as certain sets of mediamen are busy for circulating rumours and thereby convict a man/woman socially which even may lead to death.

This tendency is gradually washing out the faith, intrinsic value, confidence and trust of the readers from certain news media.

14. Newspaper includes daily, weekly, fortnightly and monthly publication containing news, advertisements, topical articles, correspondence, etc. in printed paper. The modern newspaper can be traced back to British publication the Corante (1621) and Weekly News (1622). The first daily paper was the Daily Courant (1902). In the decision of PSV Iyer us Commissioner of Sales Tax, Orissa, AIR 1960 Orissa 221, the definition of newspaper was given as any printed periodical work containing public news or comments on public news and includes such other class of printed periodical work. The essential pre-requisite of a periodical in order to make it a newspaper, is that, it must contain mainly public news or comments on public news. In the discussion of Mitra Prakahsha Ltd us post Master General. UP Allahabad, AIR 1957 All 622, it has been held if the substantial part contains articles relating to political or other news or to other current topics, it will be regarded as newspaper.

15. Newspaperman, whether a journalist, reporter or other employee, has a great responsibility towards the nation and it has been highly acclaimed that newspapers are backbone of society, as such, in newspapers the news so published should be published with due care and caution as a news may shatter the life of a person. Yellow journalism is hated by all as it spreads rumour and rumour naturally victimises a person socially, economically, mentally and physically which may ultimately cause one's ruination. But nowaday's yellow journalism is the go of the day for circulation of the paper. Our national poet, Kazi Nazrul Islam, through his writings fought for independence of the country, was a journalist and published 'Dhomketu' and 'Langal' but never published anything which effected anyone personally.

Our journalists are the next generation of our national poet but for their business, the journalists of today are busy with publication of unfounded news, even sub-judice matter, which cannot be published without permission of the Court 'concerned.

16. The learned Advocate for the petitioners submits that the accused petitioners are protected under 4th Exception of section 499 of the Penal Code and relied on the decision of Shahadat Chowdhury us Md Athur Rahman, 48 DLR 176. 4th Exception to section 499 of the Penal Code. runs as: 'It is not defamation to publish a substantially true report of the proceedings' of a Court of justice or the result of any such proceedings. On considering the news report quoted hereinbefore we are of the view that it does not publish the result of the decision of the Court, nor publish the judgment of the Court, nor there is any comment on the judgment itself but it highlighted the activities of the complainant that he, despite a decision of a competent Court, was merely going on selling the properties of the Waqf Estate thereby looted away or misappropriated huge money. Entire news item, as we see, is made on an application by the rival Mutwalli of the complainant, taking the words of the rival Mutwalli as true without verifying the same, as such, Exception 4 to section 499 of the Code is of no help to the accused petitioners.

17. Now, whether the cited decision has any bearing on the facts of the given case: From a reading of paragraphs 14 and 15 of the Judgment it appears that without arriving at any finding, quashed the proceeding in paragraph 15 of the judgment. It appears from paragraph 14 of the cited judgment that their Lordships were of the opinion that there is scope to the accused petitioners for discharging after framing of charge as prosecution has not as yet adduced any evidence but in paragraph 15 their Lordships quashed the proceedings on the ground of its prolongation. Whatever their Lordships thought but this judgment is of no help to the accused petitioners but for our satisfaction, we here quoted paragraph 11 of the said decision which runs as "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 custom of press after committing an offence including one of defamation after publishing false and malicious news and views."

18. What we have seen in the instant case.

The Reporter and the Editor i.e. the accused petitioners, published the news item without taking care or without taking pain to find out whether the news sent to them by a party .. to the proceeding is correct or not. The contents of the news item can be thrashed out in Court where the appeal is pending.

But the complainant became a prey of media trial and whatever renown the complainant achieved as a Professor of Rajshahi University has been shattered before his family, his friends, relatives, colleagues, students and the public.

19. Since charge has been framed, it is now a matter of trial.

20. Rule is discharged.

Order of stay granted earlier is vacated.