Allahabad High Court
Mukesh Agarwal vs State Of U.P. And Another on 20 November, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- APPLICATION U/S 482 No. - 4958 of 2003 Applicant :- Mukesh Agarwal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rahul Chaturvedi,A.K. Mishra Counsel for Opposite Party :- Govt. Advocate,Anshu Chaudhary Hon'ble Sudhir Agarwal,J.
1. Heard Sri A.K. Mishra, Advocate for applicant and learned A.G.A. for State.
2. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash proceedings in Criminal Case No. 4200/IX of 2002 pending in the Court of Judicial Magistrate, Mathura under Section 500 IPC.
3. Respondent-2, Dr. D.P. Goyal (hereinafter referred to as "Complainant") filed a complaint in the Court of Judicial Magistrate, Sadar, Mathura stating that accused, Mukesh Agarwal is owner and Chief Editor and Accused-2, Anil Sharma is Managing Editor of daily newspaper "Brij Uphar", which is published by Sushila Printers, Gopal Bagh, Mathura and has Registration No. 63515/95. It has wide circulation in entire Mathura district and nearby areas. In the newspaper published on 25.09.1997 with an intention to defame Complainant, a false and fabricated story under the heading "Dr. Car Kand Ka Sargana" was published therein. Relevant extract of said news item, referred in para 4 of complaint, reads as under:
^^eFkqjk 25 flrEcj cgqpfpZr dkj pksj fxjksg ds lnL;ksa dk dEiuh ekfydksa ls lEcU/k cuokus esa orZeku Hkk-i-ik- ds mik/;{k ,oa uflZax gkse ds ekfydksa dk lg;ksx jgkA lw=ksa ls izkIr tkudkjh ds vuqlkj xksih d`".k uflZax gkse ds lapkyd Mk- Mh-ih- xks;y dk dksbZ utnhdh fj'rsnkj ml dEiuh esa dk;Zjr Fkk vkSj Mk- Mh-ih- xks;y us loZ izFke eqykdkr eqjkjh yky ?kh okys dh djkbZ mlds ckn eqjkjh vkSj iou us vius lEidZ c<+k;s vkSj ftruh dkjs csph gSa mlesa ls izfrdkj deh'ku MkDVj dks Hkh fn;k x;kA gky gh esa MkDVj bl ?kVuk ls dkQh fpfUrr vkrs gSaA** "Mathura: 25th September. BPP's current vice president and nursing home owners contributed in cultivating the relations between members of infamous car lifters' gang and company owners. As per the information received from sources, some close relative of Dr. D.P. Goyal, who runs Gopi Krishna Nursing Home, was working in that company and Dr. D.P. Goyal for the first time facilitated his meeting with Murari Lal Ghee Wale, thereafter, Murari and Pawan developed their contacts; and as against the cars sold, commission per car was paid to the doctor. On account of this recent incident, the doctor has been utterly perturbed."
(English translation by Court)
4. Complainant is a Orthopedic Surgeon and his wife is also a qualified Medical Practitioner. Both are running a well known Nursing Home at Mathura. Complainant also held office of Chairman and Treasurer of Indian Orthopedic Association. They had good and clean reputation in Society, Income tax payee and well known social workers. The news item published on 25.09.1997 was to bring down reputation of Complainant. After aforesaid publication of newspaper, Complainant received various telephone calls from close friends and others who also starting looking him as if he has committed some crime and this caused complex to Complainant and he faced embarrassment in Society.
5. After recording statement of Complainant under Section 200 Cr.P.C. and witnesses, Sri Ravindra Pandey (PW-1), Dr. Sanjeev Chawna (PW-2), Dushyant (PW-3) and Dr. Ram Babu (PW-4) under Section 202 Cr.P.C. and also examining news paper published on 25.09.1997 containing aforesaid news item, summoning order was issued by Magistrate to accused-applicant for trial under Section 500 IPC holding that a prima facie case has been made out.
6. Learned counsel for applicant placed reliance on Sections 1 and 7 of Press and Registration of Books Act, 1867 (hereinafter referred to as "Act, 1867") stating that Chief Editor and Managing Editors cannot be held responsible for news item and summoning of applicant, therefore, is bad in law.
7. Having gone through the provisions referred to by learned counsel for applicant, I do not find that the same have any application in this case to help applicant in any manner.
8. Section 1 of Act, 1867 is an interpretation clause and besides other it also defines Editor as under:
"Editor" means the person who controls the selection of the matter that is published in a newspaper."
9. Section 7 deals with declaration which is required to be made under Section 5(2) of Act, 1857. Section 5(2), (2A), (2B), 2(C), 2(D), 2(E) and Section 7 of Act, 1867 read as under:
"(2) The printer and the publisher of every such newspaper shall appear in person or by agent authorized in this behalf in accordance with rules made under section 20, before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published and shall make and subscribe, in duplicate, the following declaration:
"I A.B., declare that I am the printer (or publisher, or printer and publisher) of the newspaper--entitled and to be printed or published, or to be printed and published, as the case may be at--.
And the last blank in this form of declaration shall be filled up with a true and precise account of the premises where the printing or publication is conducted."
(2A) Every declaration under rule (2) shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed.
(2B) Where the printer or publisher of a newspaper making a declaration under rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompanied by an authority in writing from the owner authorising such person to make and subscribe such declaration.
(2C) A declaration in respect of a newspaper made under rule (2) and authenticated under section 6 shall be necessary before the newspaper can be published.
(2D) Where the title of any newspaper or its language or the periodicity of its publication is changed, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued.
(2E) As often as the ownership of a news paper is changed, a new declaration shall be necessary."
"7. Office copy of declaration to be prima facie evidence.--In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration, or the editor of every portion of that issue of the newspaper of which a copy is produced."
10. In K.M. Mathew vs. K.A. Abraham and Ors., 2002(6) SCC 670 it was held that a Managing Editor, Resident Editor or Chief Editor of a newspaper are not immune from prosecution for libellous matter published in newspaper. In the aforesaid case a similar argument was advanced on behalf of accused which was negatived. Court after having considered various provisions of Act, 1867 said that a conjoint reading of provisions of Act, 1867 show that in the case of publication of any newspaper, each copy of publication shall contain names of the Owner and Editor who have printed and published that newspaper. Under Section 7 of Act, 1867 there is a presumption that the Editor whose name is printed in newspaper as Editor shall be held to be Editor in any civil or criminal proceedings in respect of that publication and production of a copy of newspaper containing his name printed thereon as Editor shall be deemed to be sufficient evidence to prove that fact. The term 'Editor' is defined as the person who controls selection of the matter that is published in a newspaper. The presumption, therefore, would go to the extent of holding that he was the person who controlled selection of matter that was published in newspaper. Court also said that is it a re rebuttable presumption but it will be deemed as sufficient evidence unless proved otherwise. Therefore, question of rebuttable presumption would arise only when accused adduced evidence and not otherwise. Court held that Section 7 only enables Court to draw a presumption that the person whose name was printed as Editor was the Editor of such newspaper, if publication produced in Court shows to that effect. Court also said that a presumption applicable to an Editor may not be drawn against Chief Editor, Resident Editor or Managing Editor but if Complainant has alleged in complaint that Chief Editor, Resident Editor and Managing Editor had knowledge and they were responsible for publication of defamatory news item, the presumption under Section 7 will be applicable to them also.
11. In a prosecution lodged alleging an offence under Section 500 IPC this Court has no manner of doubt that Complainant cannot be allowed to use judicial process as an instrument of operation of harassment or as a cloak to cover up his misdeeds by exhorting threat of prosecution to media personnel and others but simultaneously an equally responsible obligation lies upon media personnel who are instrumental in publication of news item that they must check and verify authenticity and correctness of news item. No person in media world has any licence to publish whatever it likes irrespective of consideration that news item lowers down reputation of any individual or group of individual or brings down his/their reputation in the yes of society or make scandalous allegations which may affect reputation otherwise.
12. Magistrate while taking cognizance, therefore, must be satisfied that a prima facie case against accused has been made out. He should be circumspect and judicious in exercise of discretion. He should take all relevant facts into consideration before issuing process. Vindication of majesty of justice and maintenance of law and order in the society are prime objects of criminal justice. It cannot be allowed to become means to wreak personal vengeance. But in a case where prima facie evidence has come on record, complainant has made necessary averments in complaint and also adduce evidence, and, Magistrate has exercised power of issuing process after recording its satisfaction, this court also while exercising inherent power under Section 482 Cr.P.C. would be very slow and exercise power in restraint manner so as not to unnecessarily interfere in a matter where requirement of law are satisfied justifying issue of process by Magistrate.
13. Exercise of power under Section 482 Cr.P.C. should be very sparingly and cautiously used. Only when Court comes to conclusion that there would be manifest injustice or there would be abuse of process of Court, if such power is not exercised, only then Court should interfere and not otherwise. When an order of cognizance is passed by Magistrate concerned, inherent power of Section 482 Cr.P.C. would be justified only when allegations in First Information Report or complaint together with other materials collected during investigation taken at their face value, do not constitute the offence alleged. At this stage, for issue of process by Magistrate or taking cognizance, it is not open either to sift or appreciate the evidence and come to the conclusion that no prima facie case is made out.
14. Referring and relying on an earlier judgment in Santosh De and Anr. v. Archna Gupta and Ors., 1995 CriLJ 2640, Supreme Court in K.M. Mathew vs. K.A. Abraham (supra) said that unless grave illegality is committed, Superior Court should not interfere. It should allow Trial Court which is ceased of the matter to go on with it. There is always an Appellate Court to correct the errors. Court warned and said that one should keep in mind principle behind Section 482 Cr.P.C. Any or every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a Superior Court unless such irregularity or infraction has caused irreparable prejudice to party and requires to be corrected at that stage itself. Court also said:
"Frequent interference by superior Courts at the interlocutory stage tends to defeat the ends of justice instead of serving those ends. It should not that a man with enough means is able to keep the law at bay. That would mean the failure of the very system."
(emphasis added)
15. In the present case also I find that pleadings against accused-applicant are very specific; supported by evidence recorded by Magistrate under Sections 200 and 202 Cr.P.C., therefore, it cannot be said that there is any manifest illegality or gross injustice on the part of Magistrate in issue of process to accused-applicant.
16. No interference, therefore, is called for.
17. Dismissed. Interim order, if any, stands vacated.
Order Date :- 20.11.2019 AK