नेपाली छात्रा प्रिसा साहको शंकास्पद मृत्यु प्रकरण :  छानबिन समितिमै हिंसा घटनाका संरक्षक 

काठमाडौं । भारतमा नेपाली विद्यार्थी प्रिसा साहको मृत्यु प्रकरणको छानबिनका लागि त्यहाँको  विश्वविद्यालय अनुदान आयोग (यूजीसी)ले गठन गरेको चार सदस्यीय छानबिन समितिका छानबिन समितिका एक जना सदस्य दुई छात्रामाथि भएको हिंसा घटनाकै संरक्षक रहेको पाइएको छ ।  

छानबिन समितिका सदस्य साउथ बिहार सेन्ट्रल युनिभर्सिटीका पूर्वकुलपति प्रा. हरिशचन्द्रसिंह राठौरमाथि सन् २०२१ मा Cr. Case Complaint (P)/134/2021 अन्तर्गत मानहानिको मुद्दा चलिरहेको पाइएको हो । उनीमाथि एक महिला कर्मचारीलाई ‘विक्षिप्त’ भन्दै अपमानपूर्ण व्यवहार गरेको अभियोग पनि छ । 

डा. राठौर उपकुलपति भएको बेला सन् २०२१ को फेब्रुअरी १७ मा उनको विश्वविद्यालयमा अध्ययनरत दुई छात्राहरू यौन दुर्व्यवहारको सिकार भएका थिए । ती विद्यार्थीले न्यायका लागि विश्वविद्यालयमा उजुरी गरेकोमा उनको नेतृत्वमा रहेको विश्वविद्यालय प्रशासनले दोषी शिक्षकले आरोप स्विकार्दासमेत  पीडितलाई न्याय दिनुको सट्टा दोषी शिक्षकलाई संरक्षण दिएको थियो । 

विश्वविद्यालयले दोषीलाई नै संरक्षण दिएपछि पीडित छात्राहरूले विश्वविद्यालयको पढाइ बिचमै छाडेका थिए ।   तिनै पूर्वकुलपति डा. राठौर अहिले नेपाली विद्यार्थीको मृत्युको तथ्य छानबिन गर्न गठित समितिका चार सदस्यमध्येका एक सदस्य हुन् । 

ओडिसा, भुवनेश्वरस्थित कलिंगा औद्योगिक प्रविधि संस्थान (केआईआईटी) मा अध्ययनरत वीरगन्ज–१५ की २० वर्षीया प्रिसाको शव उनको छात्रावास कोठामा पंखामा झुन्डिएको अवस्थामा फेला परेको थियो । यस घटनापछि समिति गठन गरिएको थियो ।

यो विषयले समितिको निष्पक्षता र गम्भीरतामा प्रश्न उठाएको छ । 

उता नेपाल सरकारले छानबिन समितिका को को छन्, कस्ता पृष्ठभूमिका व्यक्तिहरू सदस्य छन् भन्ने कुराको अध्ययन नै नगरी आफ्ना नागरिकको मृत्युमा उदासिनपूर्ण व्यवहार गरेको छ ।  नेपाली विद्यार्थीहरू श्रृंखलापूर्ण मृत्युका कारण त्रसित छन् । विद्यार्थीहरूले  नेपाल सरकार, शिक्षा मन्त्रालय र भारतस्थित नेपाली दूतावासले अहिलेसम्म कुनै ठोस कदम नचालेको हुँदा नेपाली विद्यार्थीहरूको सुरक्षा र न्यायमा ठूलो अनिश्चय देखिएको बताएका छन् । 

यूजीसीले गठन गरेको समितिले आज शुक्रबार रिपोर्ट बुझाउँदै छ । तर त्यो रिपोर्टको सत्यता र आधिकारिकतामा प्रश्नचिन्ह उठेको भारतमा अध्ययनरत नेपाली विद्यार्थीहरू बताउँछन् ।

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In The Court of 5 th Additional District & Sessions Judge, Purnea
Criminal Revision No. 84/2021
C.I.S No.-84/2021
(Arising out of order dated 25-02-2021 passed by the Learned Chief Judicial
Magistrate, Purnea whereby and wherein the Learned Chief Judicial
Magistrate, Purnea has taken cognizance against the petitioner U/s 500 and
506 of the IPC.)
Dated: 8th May, 2023
In the matter of:

1. Prof. Harish Chander Singh Rathour ……………….. Petitioner.
   Versus
2. Dr Shambavi Kumari
3. State of Bihar
   ……………………………………. O.Ps.
   Ld counsel on behalf of the petitioner : Sri Dilchand Agrawal, Adovcate
   Ld counsel on behalf of the O.P. No. 1 : Sri Awadhesh Tiwary, Advocate.
   Ld counsel on behalf of the O.P. No. 2 :- Sri Om Prakash Paswan, Ld. APP
   Present :
   1.
   Rajiv Ranjan Sahay,
   Additional Sessions Judge –V
   Purnea, Bihar
   O R D E R
   The present revision has been preferred against the order dated 25-02-2021
   passed by the learned Chief Judicial Magistrate, Purnea whereby and wherein Ld
   the learned Chief Judicial Magistrate, Purnea has taken cognizance against the
   petitioner U/s 500 and 506 of the IPC.
   2.
   The factual matrix of the case of complainant/O.P. No. 1 is that the accused
   persons in collusion with each other published a defamatory statement made by
   the accused No. 1 where in the complainant/O.P. No. 1 was called “Vikshipt”
   [Insane] and meritless for favouring the accused No. 3 and the publication was
   made by the accused No. 2 in News Paper dated 18.10.2020.
   3.
   It has been submitted by Ld counsel for the petitioner/accused that the
   averments made in the complaint does not make out any prima-facie case or
   constitute any offence much less U/s 500 and 506 of the IPC. The complaint
   suffers form fundamental legal defect as it lacks territorial jurisdiction of the
   Court of Ld. CJM, Purnea. The criminal complaint suffers form out and out
   malafide prosecution to wreck vengeance against the petitioner. It is further
   submitted by Ld. Counsel for the petitioner that even if the alleged statement said
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   to have been published by the City Reporter in the newspaper Dainik Bhaskar is
   stated to have been made by the petitioner/accused to the reporter, it cannot be
   said to have been made with the object for its publication. Even other wise what
   has been published in the newspaper allegedly in the name of the petitioner or
   said to have been stated by the petitioner still it does not constitute the ingredient
   of defamation as it is not intending to harm the reputation of the person. Further,
   the learned CJM Purnea had no territorial Jurisdiction to pass the order taking
   cognizance. It has been further submitted that as per the complaint and the
   newspaper cutting enclosed with the complaint petition it is evident that the said
   newspaper is Dainik Bhaskar (Gaya Bhaskar) dated 18-10-2020 which was
   published for circulation at Gaya and nearby. From the Newspaper page it is
   evident that its place of cirmulation is Gaya, Sherghati, Imamaganj, Barachatti
   and nearby areas. It was never meant for circulation in Purnea to reach the people
   of Purnea. The page contained local news of Gaya and nearby places. thus if the
   complainant saw this newspaper in Gaya and felt aggrieved then she could have
   filed the complaint within the territorial jurisdiction of CJM Gaya and could not
   have gone to Purnea for file the present case as the Newspaper has no circulation
   in Purnea.. Thus even taking the news item published in a newspaper in Gaya
   meant for circulation in Gaya and nearby areas, the offence of defamation could
   not be constituted at Purnea within the territorial jurisdiction of CJM Purnea.
   Hence on this ground also the order taking cognizance at Purnea is liable to be
   set-aside. It is therefore prayed to allow the revision petition and set aside the
   order dated 25.02.2021 passed by Ld. C.J.M., Purnea in complaint case no. C.A.
   134/2021.
   4.
   Ld. Counsel on behalf of O.P No. 1 submitted that the order passed by Ld.
   C.J.M., Purnea is in accordance with law and it has been further submitted that
   the online publication of any news item can be read throughout the India and the
   press council of India, a governing and regularity apex body has not issued any
   guideline or circular by which the persons residing in other parts cannot read such
   publication and as such the contention of petitioner that the persons residing in
   Purnea cannot read such publication. The mere presumption of the petitioner with
   regard to reading the newspaper does not stands legally sound. It is further stated
   that the said publication containing the defamatory remarks definitely harms the
   reputation of O.P. since she happens to be the Principal of Teacher’s Training
   College, the only teacher’s training college within the jurisdiction of old Koshi
   Division. It is submitted that the said publication not only intended to harm the
   reputation but as a matter of fact, harmed the reputation. In the revisional court
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   has to only examine legality and correctness of the order not to indulge into the
   facts of the case and status of the party. During the enquiry, the magistrate has to
   see only prima-facie materials for issuance of summon and law is well settled that
   during enquiry the evidence cannot be meticulously weighed only there must be
   sufficient ground for issuance of summon. It is therefore prayed to dismiss the
   revision petition.
   5.
   O.P No. 2 has stated that order passed by the Ld. C.J.M., Purnea is in
   accordance with law and no interference is required
   6.
   I have heard Ld. Counsel for both the parties and perused the case record.
   FINDINGS
   7.
   The scope of revision is very limited .The court has to see whether the
   Order passed by Ld. C.J.M., Purnea is just, proper and in accordance with law.
   8.
   It is necessary to reproduce the relevant provision of law :
   Section 499 in The Indian Penal Code
4. 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, to defame that person. Explanation 1.—It may
   amount to defamation to impute anything to a deceased person, if the imputation
   would harm the reputation of that person if living, and is intended to be hurtful to
   the feelings of his family or other near relatives. Explanation 2.—It may amount
   to defamation to make an imputation concerning a company or an association or
   collection of persons as such. Explanation 3.—An imputation in the form of an
   alternative or expressed ironically, may amount to defamation. Explanation 4.—
   No imputation is said to harm a person’s reputation, unless that imputation
   directly or indirectly, in the estimation of others, lowers the moral or intellectual
   character of that person, or lowers the character of that person in respect of his
   caste or of his calling, or lowers the credit of that person, or causes it to be
   believed that the body of that person is in a loathsome state, or in a state
   generally considered as disgraceful.
   9.
   In the present case, the complainant/O.P. No. 1 Dr Sambhavi Kumari has
   been filed for offences U/S 500/503/120-B IPC against the petitioner/accused
   Prof Harish Chander singh Rathour before the Ld CJM,Purnea on 18.01.2021.
   After filing of Complaint Petition before the Ld CJM,Purnea , the Complaint
   case no 134/2021 was registered and the statement of the accused was examined
   on S.A U/s 200 Cr PC . In support of his case, the complainant had examined
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   herself on SA U/s 200 CrPC in which she has stated that the occurrence took
   place on 18.10.2020 .She came to know that the statement through the News
   paper Published in Dainik Bhaskar on dated 18.10.2020 in which it has been
   stated OP No. 1 was called “Vikshipt” [Insane] and meritless by the petitioner and
   three EW-1 Jay Prakash Narayan Jha, EW-2 Anikesh Anand and EW-3 Pramod
   Kumar Jha were examined U/s 202 CrPC. From the perusal of case record, I find
   that EW1 is the father of the complainant. He supported the case of the
   complainant/O.P No. 1. EW2 is neighbour of the complainant. He has stated that
   in the interview before Dainik Bhaskar,he called the complainant as Vishipt.EW3
   is the distant relative of the complainant .He stated that Complainant /O.Pno2 told
   him in a discussion that she was vichipt by the Petitioner.Besides, she had
   produced the documents, which includes copy of news paper report, copies of
   facebook messenger chats of her acquitances making query about the news paper
   reports, Whatsapp posts, copy of e-paper portal, copy of the order of Hon’ble
   High Court dated 05.04.2018 in CWJC – 20417/2016, copy of demand draft paid
   by the University in pursuance of order of the Hon’ble High Court, Order of LPA
   620/18 dated 16.05.2019, letter of the university and, Notice of the university.
   10.
   From the perusal of record,It transpires that in Danik Bhaskar daily news
   Paper Gaya Edition, publication has been made on 18.10.2020 in the said news
   report, there is a statement of accused /petitioner : “CUSB ke Kulpati Prof.
   Harishchandra Chauhan ne kaha ki yah Mahila Vikshipt hai. Yadi usmein
   merit hai to pichhale paanch saal mein University se mukadama ladna
   chhorkar kisi anya sansthan mein koi job kyon nahi haasil kar liya. Wah
   mera aur university dono ki chhavi kharab kar apni prasiddhi chaahti hai.”
   11.
   In the present case the whole basis of the allegation in the complaint is a
   Newspaper report of a City Reporter Tekari published in Gaya Addition of a
   Daily Newspaper Dainik Bhaskar in which the complainant/O.P. No. 1 is said to
   have made her statement in an interview alleging corruption in appointment on
   the post of Assistant Professor in Central University of South Bihar, Gaya as the
   complainant could not succeed. In the said News Report the complainant has
   alleged that the newspaper reporter is said to have published an alleged statement
   of the petitioner/accused about the complainant/O.P. No. 1 by which she is said to
   have made allegation of defamation. However, the complainant has not stated that
   it was the petitioner/accused who made the statement about the complainant. The
   complainant/O.P. No. 1 has not made the Reporter either an accused or witness in
   her complainant to even a prima-facie support as to before who such statement
   was made by the petitioner for publication in any newspaper. The complainant
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   has not produced any video recording or Audio recording about any such
   statement allegedly made by the complainant/O.P. No. 1. The complainant has
   also not alleged in the entire complaint that the petitioner called any press
   conference or press interview to make such statement with the view to publish it
   in the newspaper. There is no name of reporter of newspaper before whom the
   statement was made. In the newspaper report published by a reporter it is no
   where mentioned that the report was published at the instance of Central
   University of South Bihar of the Vice-Chancellor of the said university.
   12.
   In the present case in the entire complaint petition in which the only basis
   is an alleged newspaper report it does not constitute any intimidation as there is
   no threat to any other person of any injury or reputation. Thus the cognizance
   under section this section is equally bad in law and hence liable to be set-aside.
   13.
   Thus, from the above discussion no ingredient of offence u/s 500 of IPC
   for causing defamation u/s 499 is made out and hence the order taking cognizance
   under this section is bad in law and liable to be set-aside.
   14.
   The present case is squarely covered by the guidelines and categorically
   laid down by the Hon’ble Supreme Court in the case of State of Haryana Vs.
   Bhajan Lal, AIR SC 604.
   15.
   Having heard the Ld. Counsels for both the sides at length, as discussed
   above, I find that no case is made out against the petitioner. Hence, the present
   revision is allowed and the order dated 25.02.2021 passed by the Ld. C.J.M.,
   Purnea in C.A. No. 134/2021 is set aside with direction to pass fresh order in
   accordance with law.
   Office is further directed to send the L.C.R. along with copy of this order
   to the Ld. Court below after necessary compliance.
   Sd/
   (Rajiv Ranjan Sahay)
   Additional Sessions Judge-V,
   Purnea.
   08.05.2023
   The order is self typed and corrected by me
   Sd/
   (Rajiv Ranjan Sahay)
   Additional Sessions Judge-V,
   Purnea.
   08.05.2023