Introduction:

The Calcutta High Court has quashed criminal defamation proceedings against Republic Media Network’s Senior Executive Editor/Editor-in-Chief Abhishek Kapoor and reporter Bittu Roy Choudhury, holding that continuation of the criminal complaint against them amounted to an abuse of the process of law. The Court found that the alleged defamatory material essentially consisted of the complainant’s own words spoken during a telephonic conversation and that the complaint failed to establish the essential ingredients necessary to constitute criminal defamation.

Justice Uday Kumar passed the judgment while dealing with two criminal revisional applications challenging proceedings in Complaint Case No. 1286 of 2022 pending before the Judicial Magistrate, 9th Court, Alipore. The complaint had invoked Sections 499, 500 and 34 of the Indian Penal Code against the petitioners.

The proceedings arose from a telephone conversation between reporter Bittu Roy Choudhury, who was then attached to Republic Bangla, and singer Kabir Suman. On January 27, 2022, Choudhury contacted Suman seeking his reaction concerning the death of veteran singer Sandhya Mukherjee.

According to the materials considered by the High Court, Suman reacted during the telephone conversation using what the Court described as common Bengali slangs and expletives. The conversation was subsequently recorded and circulated. Two days later, on January 29, 2022, Suman published an apology on Facebook concerning his outburst.

The circulation of the audio recording was followed by a legal notice and exchange of replies. The matter thereafter reached the criminal court, where the Magistrate took cognizance of the complaint and issued summons to the accused.

The complaint alleged offences of defamation under Sections 499 and 500 IPC read with Section 34 IPC. Section 499 defines criminal defamation, while Section 500 prescribes punishment for defamation. Section 34 deals with acts done by several persons in furtherance of a common intention.

The petitioners approached the High Court contending that the basic legal requirements of defamation were absent. Their principal submission was that there could be no defamatory “imputation” when the material complained of was simply a recording and reproduction of the complainant’s own words, spoken by him in his own voice, without any independent allegation or fabricated assertion by the accused.

The Court was therefore required to examine whether reproducing or disseminating a person’s own unedited words could constitute an “imputation” attributable to the person who recorded or circulated those words. It also had to consider whether the complaint disclosed any material showing that the publication had lowered the complainant’s reputation in the manner contemplated by Explanation 4 to Section 499 IPC.

A further issue arose concerning the manner in which the criminal proceedings had been initiated. The High Court found that the Magistrate’s cognizance order dated May 19, 2022 had been passed by merely filling out or signing a printed pro forma. The Court held that this approach was inconsistent with the requirement of judicial application of mind and contrary to Rule 183 of the Calcutta High Court Criminal (Subordinate Courts) Rules, 1985.

The summoning order dated July 14, 2022 also came under scrutiny. The High Court found that the order mechanically proceeded against the reporter and a vaguely described accused identified as “The Editor – Republic Bangla”, without adequately examining their individual roles or specific culpability.

The Court further considered the fact that the petitioners were residing outside the territorial jurisdiction of the Alipore Magistrate. In such circumstances, Section 202 of the Code of Criminal Procedure required the Magistrate to postpone issuance of process and conduct the prescribed inquiry or direct an investigation before proceeding against them.

Another significant feature of the proceedings was the complainant’s continued absence before the High Court. Kabir Suman, who was the complainant/opposite party no. 2, remained absent despite repeated opportunities and notices. In view of the continued absence and the prolonged pendency of the matter, the High Court proceeded to hear the petitions ex parte.

After examining the statutory provisions, the factual record and the relevant Supreme Court and High Court precedents, Justice Uday Kumar concluded that continuation of the complaint against the two petitioners could not be sustained. The Court described the proceedings as an “egregious abuse of the process of law and a travesty of justice”.

The High Court accordingly allowed both criminal revisional applications and quashed the entire proceedings in Complaint Case No. 1286 of 2022 insofar as they concerned Kapoor and Choudhury. It also set aside the cognizance order, the summoning order and all consequential orders against them.

Arguments of the Parties:

The petitioners, Abhishek Kapoor and Bittu Roy Choudhury, challenged the criminal proceedings primarily on the ground that the complaint did not disclose the ingredients of criminal defamation under Section 499 IPC.

Senior Advocate Sandipan Ganguly, appearing for the petitioners, submitted that an “imputation” for the purposes of Section 499 must originate from the accused. According to the defence, the statutory concept of imputation necessarily contemplates an assertion, allegation or attribution made by the person accused of defamation.

The alleged material in the present case, however, was fundamentally different. The petitioners’ case was that the recording contained the complainant’s own words spoken by the complainant himself during the telephone conversation. The petitioners did not allegedly create, fabricate or independently attribute those words to him.

Counsel therefore argued that recording or reproducing the complainant’s own unedited words could not, by itself, amount to making a defamatory imputation against him. The voice in the recording was the complainant’s own voice, and the statements were words spoken by him rather than allegations invented by the petitioners.

The defence also relied upon the distinction between reporting or reproducing what actually transpired and making an independent defamatory allegation. If a publication is a true and faithful account of an event and does not introduce any separate defamatory assertion, the essential ingredient of an “imputation” may be absent.

In support of this proposition, the petitioners relied upon the Supreme Court’s judgment in Jawaharlal Darda & Ors. v. Manoharrao Ganpatrao Kapsikar & Anr. The Supreme Court in that case considered the circumstances in which a truthful report of an event could attract criminal defamation and emphasised the importance of determining whether the accused had themselves made an independent malicious or fabricated imputation.

The petitioners also relied upon earlier decisions of the Calcutta High Court, including Samik Ghosh and Ors. v. State of West Bengal & Anr. and Afshan Meerza v. The State of West Bengal & Anr., dealing with faithful reporting or reproduction and the absence of editorial malice in appropriate circumstances.

The defence further argued that the complaint failed to satisfy Explanation 4 to Section 499 IPC. Under that Explanation, an imputation is not considered to harm a person’s reputation unless it lowers the person’s moral or intellectual character, character in respect of his caste or calling, or credit in the estimation of others, subject to the terms of the provision.

According to the petitioners, there was no sufficient material demonstrating that the alleged publication had actually lowered Kabir Suman’s reputation in the estimation of others in the manner required by law.

The petitioners pointed out that the complainant’s initial statement under Section 200 CrPC did not contain the evidence of an independent third-party witness who claimed that the complainant’s moral or intellectual character had been lowered in their estimation because of the alleged publication.

The absence of such material, according to the defence, was significant because the complaint could not rest merely on the complainant’s assertion that he had been defamed. There had to be material satisfying the statutory requirements of the offence.

The petitioners also challenged the manner in which the Magistrate had taken cognizance. They argued that the cognizance order dated May 19, 2022 was effectively a printed pro forma that had been filled out or signed without demonstrating the judicial application of mind required before a person is summoned in a criminal proceeding.

Reliance was placed on Rule 183 of the Calcutta High Court Criminal (Subordinate Courts) Rules, 1985 and the principles laid down in Sharmistha Chowdhury & Anr. v. The State of West Bengal & Ors. The petitioners contended that a Magistrate is required to consider the material before issuing process and cannot mechanically proceed against an accused.

The petitioners similarly challenged the summoning order dated July 14, 2022. They argued that the order failed to identify the individual role of each accused. In particular, Kapoor had been implicated merely by virtue of his position as Senior Executive Editor/Editor-in-Chief, while the order referred vaguely to “The Editor – Republic Bangla”.

The defence submitted that holding a senior editorial or corporate position does not automatically create criminal liability for every publication or communication associated with an organisation. There must be specific allegations demonstrating the person’s participation in the alleged offence.

For this proposition, the petitioners relied upon Supreme Court decisions including Sharad Kumar Sanghi v. Sangita Rane and JM Laboratories and Ors. v. State of Andhra Pradesh & Anr., which emphasise that a summoning order must reflect application of judicial mind and that specific allegations are necessary before individuals occupying corporate or managerial positions are subjected to criminal prosecution.

The petitioners further raised the issue of territorial jurisdiction and the failure to comply with Section 202 CrPC. It was submitted that the accused resided outside the territorial jurisdiction of the Alipore Magistrate. Consequently, before issuing process, the Magistrate was required to postpone the issuance of summons and conduct an inquiry or direct an investigation to determine whether there was sufficient ground for proceeding.

The defence relied upon the Supreme Court’s decision in Subramanian Swamy v. Union of India, Ministry of Law & Ors. in support of the mandatory nature of the inquiry contemplated by Section 202 CrPC where the accused resides beyond the territorial jurisdiction of the Magistrate.

On the other side, the complaint was premised on the assertion that the publication and circulation of the audio recording had caused reputational harm to Kabir Suman. The proceedings had been initiated after a legal notice was issued and replies were exchanged, followed by the Magistrate taking cognizance and issuing summons.

The complainant’s case was that the dissemination of the conversation justified criminal action under the defamation provisions. The allegations against the petitioners therefore placed the focus on the recording and subsequent circulation of the telephone conversation.

However, the complainant did not effectively contest the petitioners’ case before the High Court. The Court recorded that Kabir Suman had remained absent despite several opportunities and notices. In view of his continued absence and the long pendency of the proceedings, the Court proceeded to hear the matter ex parte.

The State and other respondents consequently did not provide the High Court with a substantive rebuttal capable of overcoming the petitioners’ arguments on the statutory ingredients of defamation and the procedural defects identified in the orders of the Magistrate.

Court’s Judgment:

Justice Uday Kumar allowed both criminal revisional applications and quashed the proceedings against Abhishek Kapoor and Bittu Roy Choudhury.

The Court’s reasoning proceeded on both substantive and procedural grounds. On the substantive issue of defamation, the Court examined whether the material relied upon by the complainant constituted an “imputation” attributable to the petitioners within the meaning of Section 499 IPC.

The Court considered the nature of the telephone conversation and the subsequent circulation of the recording. The material before the Court showed that Kabir Suman himself had spoken the words during the telephone conversation. The Court noted that the conversation contained what it described as common Bengali slangs and expletives and that Suman subsequently published an apology on Facebook concerning the outburst.

This factual sequence was important. The alleged defamatory material was not a statement independently authored by the petitioners and attributed to Suman. Rather, the allegation arose from the recording and circulation of words spoken by Suman himself.

The Court therefore considered the Supreme Court’s decision in Jawaharlal Darda & Ors. v. Manoharrao Ganpatrao Kapsikar & Anr. The principle emerging from that decision, as applied by the High Court, is that where a publication constitutes a true and faithful account of what actually transpired and contains no independent malicious or fabricated imputation by the accused, the essential requirements of criminal defamation may not be satisfied.

The High Court also considered its own earlier decisions in Samik Ghosh and Afshan Meerza. These decisions were relevant to the question of faithful reporting or reproduction and the circumstances in which criminal liability for defamation cannot be imposed merely because material concerning a person has been reproduced.

The Court consequently examined whether Kapoor or Choudhury had introduced an independent imputation into the material. The distinction was critical. Defamation under Section 499 is concerned with an imputation made with the requisite intention, knowledge or reason to believe that it will harm the reputation of another. Where the alleged material merely reproduces the person’s own words without an additional defamatory assertion, the statutory foundation of the offence must be carefully examined.

The Court next turned to Explanation 4 to Section 499 IPC.

Explanation 4 provides an important limitation on the concept of reputational harm. Not every unpleasant reference, criticism or statement concerning a person automatically amounts to an imputation that harms reputation. The statutory test requires consideration of whether the imputation lowers the person’s moral or intellectual character, character in respect of his calling or other aspects specified by the provision, or his credit in the estimation of others.

The High Court examined the complainant’s deposition under Section 200 CrPC and found an important deficiency. There was no testimony from an independent third-party witness stating that the complainant’s moral or intellectual character had been lowered in that person’s estimation as a consequence of the alleged publication.

The Court treated this absence as significant in assessing whether the basic ingredients of the offence had been established at the threshold.

The judgment therefore did not proceed merely on the premise that the complainant was offended by the circulation of the recording. The Court applied the statutory requirements governing criminal defamation and examined whether the material demonstrated the legally recognised form of reputational harm contemplated by Section 499.

The Court then addressed the procedural legality of the criminal proceedings.

It found that the cognizance order dated May 19, 2022 suffered from a serious defect because it had effectively been passed by filling out or signing a printed pro forma. According to the High Court, such an approach did not demonstrate the judicial application of mind expected from a Magistrate before taking cognizance of a criminal complaint.

The Court referred to Rule 183 of the Calcutta High Court Criminal (Subordinate Courts) Rules, 1985 and the principles laid down in Sharmistha Chowdhury & Anr. v. The State of West Bengal & Ors. The requirement of an application of judicial mind is especially important because the act of taking cognizance and issuing process sets the criminal law into motion against an individual.

A Magistrate is therefore required to examine the complaint and supporting material rather than mechanically issue an order permitting the prosecution to proceed.

The summoning order dated July 14, 2022 was also found defective.

The High Court noted that the order proceeded against a vague designation, namely “The Editor – Republic Bangla”, along with the reporter. It did not adequately identify the individual role or specific culpability of the persons being summoned.

This deficiency was particularly relevant in Kapoor’s case. He had been implicated in his capacity as Senior Executive Editor/Editor-in-Chief of Republic Media Network. The Court considered that merely occupying an editorial or senior corporate position could not, without specific allegations regarding participation in the offence, automatically make a person criminally liable.

The Court relied on the Supreme Court’s decisions in Sharad Kumar Sanghi v. Sangita Rane and JM Laboratories and Ors. v. State of Andhra Pradesh & Anr. These authorities underscore the need for a summoning order to reflect proper judicial consideration and for specific allegations to connect an individual accused with the alleged criminal conduct.

The principle assumes particular importance when criminal proceedings are sought against persons because of their designation within a company, media organisation or other institution. Criminal liability is personal and cannot ordinarily be imposed merely because an individual occupies a senior position.

The High Court also found another procedural defect concerning territorial jurisdiction.

The petitioners were residing outside the territorial jurisdiction of the Magistrate at Alipore. Section 202 CrPC requires a Magistrate, in such circumstances, to postpone issuance of process and conduct an inquiry or direct an investigation for determining whether there is sufficient ground for proceeding against the accused.

The Court referred to the Supreme Court’s decision in Subramanian Swamy v. Union of India, Ministry of Law & Ors. in explaining the statutory requirement.

The purpose of such an inquiry is significant. It provides an additional safeguard against persons being summoned to face criminal proceedings in a jurisdiction distant from their place of residence without the Magistrate first satisfying himself that sufficient grounds exist to proceed.

The High Court found that the mandatory procedure had not been followed in the present case. This procedural failure further weakened the foundation of the summons issued against the petitioners.

Taken together, the Court found defects at multiple stages of the proceedings. The substantive allegation of defamation was insufficiently established because the alleged publication involved the complainant’s own words and lacked a demonstrated independent imputation by the accused. The complaint also did not adequately establish the reputational harm contemplated by Explanation 4 to Section 499.

In addition, the cognizance order did not demonstrate adequate application of judicial mind, the summoning order failed to identify the specific role of the accused, and the mandatory procedure under Section 202 CrPC had not been complied with despite the petitioners residing outside the Magistate’s territorial jurisdiction.

The continued absence of the compla