On Sat, May 2, 2009 at 11:53 AM, drscroy@vsnl.com <drscroy@vsnl.com> wrote:
Subject: CALCUTTA HIGH COURT'S JUDGMENT
Dear Mr Biswas,
Please find below the copy of the Judgment given by the Calcutta High Court
quashing my case on Amartya Sen's so-called Nobel Prize award. The said
judgment is now available on the internet:
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Ananda Publishers Pvt. Ltd. And Ors. vs State Of West Bengal And Anr. on 15
September, 2006
Cites 19 docs - [View All]
Section 482 in The Code Of Criminal Procedure, 1973
Section 420 in The Indian Penal Code, 1860
Section 415 in The Indian Penal Code, 1860
Zee Telefilms Limited vs M/S. Sahara India Commercial Corporation ... on 9
November, 2000
M/S.Geep Batteries(India)Pvt.Ltd & Anr vs R.K.Mishra & Anr on 11 July, 2008
Kolkata High Court
Ananda Publishers Pvt. Ltd. And Ors. vs State Of West Bengal And Anr.
on 15/9/2006
JUDGMENT
Prabuddha Sankar Banerjee, J.
1. This revisional application under Section 482 of the Criminal
Procedure Code is at the instance of the petitioners who were accused
persons in the case which was numbered as C-859 of 2004 pending before the
Court of learned Metropolitan Magistrate, 13th Court, Calcutta.
2. The said case was brought by the present opposite party No. 2 for
alleged offence under Section 418/420/120B of Indian Penal Code and was
filed before the Court of learned Additional Chief Metropolitan Magistrate
at Calcutta.
3. The learned Additional Chief Judicial Magistrate after taking
cognizance of the offence transferred the case to the Court of learned 13th
Metropolitan Magistrate.
4. The opposite party No. 2 filed the said case claiming himself to be
an educated person having obtained his Ph.D. degree from Moscow State
University (formerly USSR). It is the case of the complainant of that case
that the present petitioners are the translator, publisher, cover designer
and printer of one Bengali book under the title of "Unnoyon O Shakhamata".
It is the further case of the complainant that the writer of the said book
was Professor Amartya Sen who is winner of the "Bank of Sweden Prize in
Economic Sciences in memory of Alfred Nobel" for 1998. The said book was
translated into Bengali language and was published by Ananda Publisher
and the complainant purchased the copy of the said book on 22.7.2004. After
going through the jacket cover of the said book he noticed that the author
has been described as "Ortho Nitite Nobel Puroskare Sonmanito". It is
alleged in the said complaint that accused No. 1, being a publisher had
adequate knowledge about the website and was acquainted with the website
address of the Nobel Foundation. It is the allegation of the complainant
that the accused persons were in the know that Amartya Sen obtained the
prize in "Economic Sciences in the memory of Alfred Nobel" for 1998. As
such, describing him, as "Arthonitite Nobel Puroskare Sammanito" was
intentional mistake. It is the further case of the complainant that as per
Will of Alfred Nobel there was no Nobel Prize for Economics. It is the
further case of the complainant that Nobel Prize is given for (i) Physics
(ii) Chemistry (iii) Physiology or Medicine (iv) Literature and (v) Peace.
It is the further case of the complainant that since 1968, the Bank of
Sweden inaugurated the Bank of Sweden Prize in Economic Sciences in memory
of Alfred Nobel. The complainant also alleged that the said intentional
mistake was made by the accused persons for the purpose of wrongful gain
from the purchasers by deceiving and inducing them to purchase the book
using fraudulent description thereby causing wrongful loss to them. The
complainant further took the plea that the jacket cover of the book was
made in such way that it can be separated from the book at any time. As the
complainant sustained mental injury from the said fraudulent description
made in the book, the complaint was filed with prayer for punishment as per
provision of Section 418/420/120B of the Indian Penal Code.
5. The learned Magistrate after examination of the complainant and
relying upon the documents issued summons against the present petitioners
for alleged offence under Section 420 of the Indian Penal Code.
6. The present petitioners entered into appearance before the concerned
Magistrate and were released on executing P.R. bond.
7. Subsequently, they came up before this Court by filing the revisional
application under Section 482 of the Criminal Procedure Code with prayer
for quashing the said criminal case by invoking the inherent power.
8. Sri Sabyasachi Banerjee, learned Advocate appearing for the
petitioners, challenged the proceeding on the following grounds:
a) That there was material suppression of fact before the Court below.
b) That the Court below without applying its judicial mind issued the
process against the present petitioners.
c) That the Court below did not consider that the ingredients which are
essential to constitute an offence of cheating as per provision of Section
415 of the Indian Penal Code are absent.
d) That the Court below did not consider that the complainant was not
cheated in any way by the act of the present petitioners.
e) That the Court below ought to have considered that the book in
question was translated in Bengali from the original book which was
published by Oxford University Press.
9. The complainant Dr. Subodh Chandra Roy, who is the opposite party No.
2 in this revisional application appeared and conducted the case in person.
10. The following cases were relied upon by the parties:
(i) G.V. Rao v. L.H.B Prosad reported in 2000 C Cr. LR(SC) 302.
(ii) Dr. Sharma's Nursing Home v. Delhi Administration reported in
1999 SCC (Cri) 91.
(iii) Madhab Rao Scindia and Ors. v. S.C. Angre and Ors. reported in
1988 SCC (Cri) 234.
(iv) State of Hariyana v. Bhajanlal.
(v) Punjab National Bank and Ors. v. Surendra Prosad Sinha reported in
1993 SCC (Cri) 149.
(vi) Champa Agency and Anr. v. R. Chowdhury and Anr. reported in 1974 CHN
400.
(vii) Kalpanath Rai v. State .
(viii) Zee Telefilms Ltd. v. Sahara India Commercial Corporation Ltd. and
Anr. reported in 2001 C Cr. LR (Cal) 106.
(ix) N.D. Dayal and Anr. v. Union of India and Ors. 2003 (SCI) GJX 0886 SC.
(x) Municipal Corporation of Delhi v. Gunram Kaur, .
(xi) Abhik Sarkar and Anr. v. State and Anr. 2004 C Cr. LR (Cal) 383.
11. In this connection, I must mention that at the time of hearing,
parties referred to the print outs from website with respect to Nobel
Foundation and also regarding the bio-data of Professor Amartya Sen.
12. Dr. Roy, the opposite party No. 2 at the time of his strenuous
argument tried to convince me that the present petitioners knew it very
well that Prof. Amartya Sen never received any Nobel Prize for Economics as
the said award does not exist on the basis of last Will of Alfred Nobel.
Dr. Roy contended at the time of hearing that as per last Will of Alfred
Nobel, there would be Nobel Prize for Physics, for chemical discovery or
improvement (Chemistry), for most improved discovery within the domain of
Physiology or Medicine, for literature and for person who shall have done
the most or the best work for fraternity between nations, for the policy or
reduction of standing arms and for the holding and promotion of peace
congresses (peace). For this he referred to Annexure 'A' which is at page
18 of his affidavit-in-opposition. He also referred to Annexure 'B' which
is at page 19 which relates to the details of the Nobel Foundation
established in 1900.
13. Annexure 'C which is at page 20 describes the award given to Prof.
Sen "Bank of Sweden Prize in Economic Sciences in memory of Alfred Nobel".
Annexure 'D' appearing at page 21 of the affidavit-in-opposition by
opposite party No. 2 goes to show that Prof. Amartya Sen got the said prize
in the year 1998. Dr. Roy, during his strenuous argument drew my attention
to the fact that Nobel Prize is different from the prize in Economic
Sciences and Nobel Prize is known as Nobel Diploma as it appears in
Annexure 'E-1' corresponding to page 22. The said Annexure goes to show
that Robert B. Laughlin got Nobel Diploma for the year 1998 in Physics.
Similarly, the Nobel Diploma prize in Chemistry was given to Walter Khan
for the year 1998 as per Annexure 'E-2'. He also drew the attention of the
Court to Annexure 'E-3.' 'E-4' and on the basis of the same it was
submitted that the Nobel Prize is known as Nobel Diploma. At the same time,
he drew the attention of the Court to Annexure 'E-5' corresponding to page
26 which clearly provides that words 'Nobel Diploma' is absent. The print
outs from website with respect to Copyright and Trade Mark of Nobel
Foundation and the medal for the prize in Economic Sciences in memory of
Alfred Nobel is quite different from the actual Nobel Prize.
Accordingly, it was submitted by Dr. Roy the opposite party No. 2 that
this fact was known to the present petitioners who intentionally described
Prof. Sen as "Ortho Nitite Nobel Puroskare Sonmanito". Dr. Roy continued
his argument on the ground that the same was done intentionally to deceive
the purchasers by prevailing over them to accept Prof. Sen as recipient of
Nobel Prize in Economics. The ultimate aim of the present petitioners was
for wrongful gain by deceiving the purchasers to accept Prof. Amartya Sen
as recipient of Nobel Prize in Economics.
14. Dr. Roy argued further that he was also cheated by the present
petitioners as he was of the belief that Prof. Sen got Nobel Prize in
Economics which was subsequently found not to be correct. Dr. Roy further
argued that the learned Trial Magistrate on the basis of his initial ezahar
and on the basis of documents which were filed at the time of enquiry was
of clear opinion that there exists strong prima facie case against the
present petitioners for alleged offence under Section 420 of the Indian
Penal Code and thereafter summons were issued. Accordingly, it was
submitted by Dr. Roy that the learned Magistrate after applying his
judicial mind was of clear opinion that the ingredients which are essential
for commission of offence under Section 420 of the Indian Penal Code were
prima facie proved before him and as such the question of quashing the
criminal proceeding should be rejected.
15. The following facts are not in dispute:
i) That the present petitioners translated and published the original
work of Prof. Amartya Sen namely "Development as Freedom" which was
published in United States by Alfred A. Knopf and was published in India by
Oxford University Press, New Delhi.
ii) That the petitioners printed and published the said book in
Bengali in the name of "Unnoyon O Shakhamata" after getting permission
from the original publisher.
iii) The said permission on oath as stated in the affidavit was not
disputed by the opposite party No. 2 in his affidavit-in-opposition.
iv) That no criminal action has been taken against the original
publisher by the opposite party No. 2.
16. Sri Sabyasachi Banerjee, at the time of his argument challenged the
proceeding pending before the Court below mainly on the ground that there
was suppression of fact as it has not been stated before the Court below
that in the original book which was in English and published by Oxford
India Paper book, Amartya Sen was mentioned as winner of Nobel Prize in
Economics.
17. Sri Banerjee further argued that the present petitioners only
printed and published the said work of Amartya Sen and it is verbatim
reproduction of the original work of Amartya Sen from English to Bengali
including the description of Amartya Sen in the cover page of the English
version.
18. Sri Banerjee further contended that the ingredients which are
absolutely necessary for making out prima facie case of cheating are absent
and the learned Magistrate without applying his judicial mind issued the
process. It was further argued by Sri Banerjee that if the entire
proceeding is not quashed, the present petitioners will be harassed and it
is the bounded duty of this Court to stop the same by quashing the
proceeding by invoking its inherent power under Section 482 of the Criminal
Procedure Code.
19. It was argued by Sri Banerjee that even the Hon'ble Supreme Court in
the case of N.D. Dayal and Anr. v. Union of India (supra) mentioned Prof.
Sen for his classic work "Development as Freedom" as Nobel Prize winner. On
the basis of the same, it was argued that as the Apex Court already held
that Amartya Sen is Nobel Prize winner, the petitioners did not commit
anything wrong in mentioning him as "Arthonitite Nobel Puroskare Sammanito"
in the book "Unnoyon O Shakhamata".
20. I have already stated that print outs from the website were filed
and were made Annexures to the affidavit-in-opposition by the opposite
party No. 2. It is the specific case of the opposite party No. 2 that there
is no Nobel Prize for Economics.
21. I have gone through the print-outs from the said website which are
marked as Annexures 'A' to 'G' corresponding to pages 18 to 28 of the
affidavit-in-opposition. Even from the excerpt of the Will of Alfred Nobel
which is marked as Annexure 'A' (page 18) it is seen that the following
sentences have been mentioned "NOBEL -Physics, Chemistry, Medicine,
Literature, Peace, Economics". Strangely the Annexures which I have already
referred go to show that against the word Nobel, each of the Annexure
contains the subject namely Physics, Chemistry, Medicine, Literature,
Peace and Economics. Annexure 'C starts with "Bank of Sweden Prize in
Economic Sciences in memory of Alfred Nobel". However, against the word
Nobel the following subjects are mentioned namely Physics, Chemistry,
Medicine, Literature, Peace and Economics-Annexure 'D' (page 21) is the
prize for Economic Sciences 1998 in the name of Amartya Sen. However,
against the word "Nobel" Economics is also mentioned along with Physics,
Chemistry, Medicine, Literature and Peace.
22. In Annexure 'D' the following words on the right hand side have been
mentioned—
The 1998 prize in
Physics
Chemistry
Physiology or Medicine
Literature
Peace
Economic Sciences
23. It is therefore, clear that along with Nobel Prize for the other
subjects, Economic Sciences has also been included. The print outs with
respect to Nobel Prize for Physics, Chemistry etc. go to show that the
words Nobel Diploma has been mentioned in those Annexures whereas for
Economics it has been mentioned as 'Laureates' and name of Prof. Sen has
been mentioned for the year 1998.
24. Dr. Roy drew the attention of Annexure 'G' (page 28) and special
reference was made to last paragraph which runs as follows:
The Economics prize is not a Nobel Prize. In 1968 the Bank of Sweden
(Sveriges Riks Bank) instituted Bank of Sweden Prize in Economic Sciences
in memory of Alfred Nobel and it has since been awarded by the Royal
Swedish Academy of Science, Stockholm.
25. On the basis of the said observation and also on the basis of
contents of other print-outs from website regarding Nobel Prize, Dr. Roy
contended that Prof. Amartya Sen was never awarded Nobel Prize for
Economics but he was awarded with Bank of Sweden Prize in Economic Sciences
in the memory of Alfred Nobel.
26. Dr. Roy being armed with those observations argued that describing
Prof. Amartya Sen as recipient of Nobel Prize in Economics is wrong and
printing the same in Bengal version of 'Development as Freedom' in the name
of "Unnoyon 0 Shakhamata" is to be treated as deceitful act on the part of
the present petitioners in cheating common people including complainant.
27. Being asked by the Court how the complainant was cheated by the act
of the present petitioners in mentioning Professor Sen as recipient of
Nobel Prize in Economics, Dr. Roy answered that had it been known to him
that Prof. Sen did not receive Nobel Prize in Economics, he would not have
purchased the book. During hearing Sri Joymalya Bagchi, learned Senior
Counsel for the petitioners produced one book in the name and style "The
Argumentative Indian" published by Penguin Books and contended that Prof.
Sen was mentioned as winner of Nobel Prize in Economics in 1998 in the
said book.
28. Whether Prof. Amartya Sen actually received "Nobel Prize in
Economics" in the year 1998 or obtained Bank of Sweden Prize in Economic
Sciences in the year 1998 is not to be decided by this Court as this Court
has no power to pass such order.
29. In the case of N.D. Dayal and Anr. v. Union of India, the Hon'ble
Supreme Court mentioned Prof. Sen as recipient of Nobel Prize in Economics
when the Apex Court referred the book "Development as Freedom". How far the
said finding of the Supreme Court is relevant regarding 'Nobel Prize" award
is not to be considered by this Court. We are concerned whether by
publishing the book 'Development as Freedom' in Bengali the petitioners
cheated the complainant.
30. Admittedly, the publisher of the original book 'Development as
Freedom' was not made party to the proceeding before the Court below. I
have already stated that the present petitioners only translated the said
book into Bengali after obtaining permission. On perusal of Section 415 of
Indian Penal Code,' it is clear that the ingredients, which are essential
for commission of an offence of cheating are very much absent in the case
brought by the opposite party No. 2. The Court below did not get any
opportunity to consider whether in the original book i.e. 'Development as
Freedom', Amartya Sen was described as winner
of Nobel Prize in Economics.
31. Dr. Roy, in course of his argument referred Section 415 of the
Indian Penal Code and on the basis of the same he argued that the present
petitioners dishonestly induced common people and the said common people
being deceived by such act of the petitioners purchased the book. He
further argued that the present petitioners intentionally induced the
common people and thereby the said common people were cheated.
32. Section 415 of the Indian Penal Code runs as follows:
Whoever, by deceiving any person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any person, or to
consent that any person shall retain any property, or intentionally induces
the person so deceived to do or omit to do anything which he would not do
or omit if he were not so deceived, and which act or omission causes or is
likely to cause damage or harm to that person in body, mind, reputation or
property, is said to 'cheat'.
33. On perusal of the explanation appended to the said Section it is
clear that a dishonest concealment of fact is a deception within the
meaning of this Section (emphasis supplied).
34. I have already stated that the book in question namely
"Unnoyon-O-Shakhamata" was translated into Bengali from the original book
named "Development as freedom" written by Prof. Sen which was published in
USA by Alfred A Knopf. The Indian edition of the said book was published by
Oxford University Press. Had there been any dishonest intention on the part
of the present petitioners, the contents of the book along with cover page
would have been different. As it is verbative translation of the original
book, it cannot be said that there was any dishonest concealment of fact.
35. It has become the settled principle of law at present that the High
Court should invoke its inherent power under Section 482 of the Criminal
Procedure Code sparingly. In other words, the said inherent power should be
invoked in rarest of rare cases. If it is found that there was inherent
defect in the proceeding from very beginning, the High Court should invoke
its inherent power to save a litigant from further harassment. In Rambilas
Devi and Anr. v. Umesh Kumar Singh and Anr. reported in 2006(2) C Cr. LR
(SC) 118; the Hon'ble Supreme Court came to the decision that if the
allegations do not constitute any criminal offence, and if no ingredient of
the alleged offence is made out, the Court should quash the proceeding in
the interest of justice.
36. Let me now discuss the cases referred by the parties during hearing.
37. In Avik Sarkar and Anr. v. State and Anr. reported in 2004 C Cr. LR
(Cal) 383 the Single Judge of this Court refused to quash the proceeding on
the ground that there was publication and circulation of obscene photograph
of Baris Baker and a lady in the newspaper and the sports magazine and
trial is yet to commence. In my opinion the said case law is not attracted,
as we are not concerned with publication of any obscene photograph etc.
38. In the case between G.V. Rao v. L.H.B. Prosad and Ors. reported in
2000 C Cr. LR (SC) 302; the Hon'ble Court came to the conclusion that
fraudulent intention is essential.
39. In the case between Dr. Sharma's Nursing Home v. Delhi
Administration and Ors. reported in 1999 SCC (Cri) 91; the Hon'ble
Supreme Court opined that dishonest inducement is one of the ingredient of
cheating.
40. I have already discussed that dishonest inducement is very much
absent in the instant case on the basis of materials on record.
41. In the case between Madhav Rao Jiwajirao Scindia and Ors. v.
Sambhaji Rao Chandrojirao Angre and Ors. reported in 1988 SCC(Cri) 234, the
Hon'ble Court held:
When a prosecution at the initial stage is asked to be quashed, the
test to be applied by the Court is as to whether the uncontroverted
allegations as made prima facie establish the offence. It is also for the
Court to take into consideration any special features which appear in a
particular case to consider whether it is expedient and in the interest of
justice to permit a prosecution to continue. This is so on the basis that
the Court cannot be utilized for any oblique purpose and where in the
opinion of the Court chances of an ultimate conviction are bleak, and
therefore, no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the Court may while taking into consideration the
special facts of a case also quash the proceeding even though it may in a
preliminary stage.
42. In this regard, I must refer my earlier discussion wherein I have
discussed that on the basis of materials on record the main ingredients for
commission of an offence of cheating are absent.
43. The case in between State of Hariyana and Ors. v. Ch. Bhajan Lal and
Ors. reported in AIR 1992 SC 604; in my opinion has no manner of
application in the instant case.
44. In the case between Punjab National Bank and Ors. v. Surendra Prosad
Sinha, 1993 SCC (Cri) 149; the Hon'ble Court came to the finding that
regarding issue of process, Court should be circumspect and judicious in
its approach process should not be an instrument of oppression and
harassment.
45. In the case between Champa Agency and Anr. v. R. Chowdhury and Anr.
reported in 1974 CHN 400 : CRR No. 865 of 1973—date of judgment 20.8.1974
this Court passed order regarding mens rea and the Court came to the
conclusion that in a case against a company or a corporate body, mens rea
is an essential ingredient. The case reported in 1997 (8) SCC 732, in my
opinion, has no application in the instant case.
46. In the case between Zee Telefilms Ltd. v. Sahara India Commercial
Corporation, reported in 2001 C Cr. LR (Cal) 106; the Court held that mens
rea is one of the essential ingredient in an offence of defamation.
47. On the basis of materials on record I am of clear opinion that the
ingredients which are essential to constitute an offence of cheating are
absent in the instant case. It is also clear from materials on record that
dishonest intention on the part of the present petitioners could not be
established and the learned Magistrate without proper application of his
judicial mind passed order for issuing process against the present
petitioners. I am of clear opinion that this is a fit case where this Court
should invoke its power under Section 482 of the Criminal Procedure Code to
prevent harassment of litigants.
48. Accordingly, this criminal revision is allowed on contest. The
proceeding arising out of case No. C-859 of 2004 pending before the Court
of learned Metropolitan Magistrate, 13th Court, Calcutta, is hereby
quashed. However, there will be no order as to costs. Copy of this order be
sent to the Court below at once.
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