Delhi High Court
Indu Jain & Anr. vs N.C.T. Of Delhi & Ors. on 20 March, 2012
Author: M.L. Mehta
Bench: M.L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:20.03.2012
+ CRL.M.C. 685/2008
INDU JAIN & ANR. ..... Petitioner
Through: Mr. R.K. Handoo, Mr. Yoginder
Handoo and Mr. S.P. Pandey,
Advocates
versus
N.C.T. OF DELHI & ORS. ..... Respondent
Through: Mr.M.N.Dudeja, APP.
Mr. Upamanju Hazarika, Sr. Adv.
with Mr. T.K. Pradhan, Mr.
Roopesh Kanwar and Mr. Paul
Roy Paske, Advocates for
respondent no.2.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This is a petition under Section 482 CrPC for quashing of criminal complaint No. 343/1/2002 filed on 16.4.2002 and summoning orders dated 26.6.2007 issued against the petitioners by the learned M.M. for the alleged offence under Section 499/500/501/502 read with 34 IPC. Petitioner No. 1 and 2 are Chairperson and Managing Director respectively of M/s. Bennett Coleman and Co.Ltd. which is a company having various publications and magazines under its banner like the Times of India, Financial Times, Economic Times, Sandhya Times etc. Crl.M.C. 685/2008 Page 1 of 7 Respondent No. 2 is a coaching institute for providing assistance to the students aspiring to clear the Joint Entrance Examination (JEE).
2. The criminal complaint was filed by respondent No. 2 alleging that in the 18th February, 2002 issue of Education Times, which is a sister publication of Times of India, a defamatory article regarding the respondent institute was published causing huge loss to the goodwill and reputation of the respondent institute. It is alleged in the complaint that due to the offending article, the image and reputation of the complainant had greatly reduced in the eyes of the students, parents and general public. It was on the basis of this complaint that impugned summoning orders were issued against the petitioners.
3. The impugned summoning orders are challenged by the counsel for petitioners on the ground that in the complaint, there is no act or omission attributed to the petitioners and they are arrayed as parties merely because of their being Chairman and Managing Director of the Company and they have nothing to do with the impugned publications and are not involved with the making, printing or publishing the impugned news items. Reliance is placed on Section 5 and 7 of the Press and Registration of Books Act and the judgment of K.M.Mathew Vs. State of Kerala, 1992 (1) SCC 217, Shobhna Bhartia and Ors. Vs. NCT of Delhi and Ors., 2008 (1) JCC 327 and K.Jagannatha Shetty and Yogeshwar Dayal, AIR 1992 SC 2206.
4. Per contra, the learned counsel for the respondent No. 2 submitted that the defamatory article was published in the petitioner's newspaper Crl.M.C. 685/2008 Page 2 of 7 out of malice and to pursue their business agenda. It is stated that the respondent used to advertise in the petitioners' newspapers on a frequent basis and was their regular client. In the year 2002, the complainant was in negotiations with the newspaper for seeking a discount in the advertisement rates, but the negotiations failed and the respondent institute stopped advertisements in their newspapers and this is the reason for the publication of the defamatory article in the newspaper of the petitioners. The learned counsel for the respondent No. 2 further submitted that the provisions under the Press and Registration of Books Act raise a statutory presumption against the functionaries named in the complaint and when there are specific averments in the complaint regarding the role of the Chairman and Managing Director of the publication, then, they can be made liable in a case for defamation. It is further submitted that there is specific allegation and evidence to show that the petitioners were responsible for taking the decisions in the publications and were involved in the day-to-day working of the newspaper and it is not possible that the decision of publishing the article in the newspaper was without the knowledge or consent of the petitioners, and hence, they ought to be proceeded against, in the complaint case filed by the respondent institute against the other functionaries of the publication. It was further stated that at this stage, the interference by this court under Section 482 CrPC is uncalled for. In this regard, reliance is placed on M.N.Daman Vs. S.K.Sinha and Ors. (2001) 5 SCC 156 and Jeffrey J. Diermeier & Anr. Vs. State of West Bengal and Anr., (2010) 6 SCC 243.
Crl.M.C. 685/2008 Page 3 of 75. I have heard the learned counsel for the petitioners as also the respondent No. 2 and perused the record.
6. Section 5 of the Press and Registration of Books Act stipulates that every printer and publisher of a newspaper shall make a statutory declaration before a competent Magistrate in the prescribed form. Section 7 of the Press and Registration of Books Act provides that unless the contrary is proved, the persons declared as printer, publisher and editor of the newspaper are presumed to be responsible for the contents of the newspaper. There is no doubt regarding the fact that the article was defamatory in nature but the question before this Court is that whether any person other than the Printer, Publisher and Editor can be prosecuted for a defamatory article or not.
7. In the case of Shobhana Bhartia (supra), while deliberating on this issue, after discussing the judgments in K.M. Mathew (supra), State of Maharashtra v. R.B. Chowdhari and Sardar Nihal Singh v. Arjan Das, 1983 CrLJ 777, it was laid down that:
"58...(i)Besides persons declared as editor, printer and publisher of a newspaper, only such person could be prosecuted for an action of defamation against whom specific and clear allegations has been made in the complaint that either he was responsible for selection of the defamatory matter or had personal knowledge about the contents of the defamatory matter. In addition, it must also be averred in the complaint that such person had the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the complainant.
(ii) The Chairman or the Managing Director of the company owning a newspaper is neither the editor, nor the printer nor Crl.M.C. 685/2008 Page 4 of 7 the publisher and therefore no presumption could be drawn against holder of these offices even though they are, by reason of the offices held by them, in charge of, and responsible to, the company for the conduct of its business".
8. Hence, it is settled legal proposition that in the absence of specific averments in the complaint and evidence to support those averments, nobody except the printer, publisher and editor of the newspaper can be presumed to be responsible for the contents of the newspaper and cannot be prosecuted for the offence of defamation. From the perusal of the complaint , it is noticed that the complainant has relied on the fact of refusal of providing discounts by the management to support the allegation that the petitioners were involved in the day to day management of the publication and were responsible for taking the decisions in the said publications. In my view, this fact alone is not sufficient to support the allegations made by the complainant which are prima facie vague and based on presumptions. The averments in the complaint also do not make a case of abetment or conspiracy.
9. There is nothing in the complaint to substantiate the allegations of the complainant that the petitioners were responsible for the publication of the said article in the newspaper or had knowledge or consented to the publication of objectionable article in the newspaper. A Magistrate before whom a complaint is presented has to satisfy himself that it contains the necessary averments. The complaint would have to bring on record material to justify the Court taking cognizance of the offence and summoning the accused persons. Shedding light on the criticality of summoning a person in a criminal case, the Apex Court in Pepsi Foods Crl.M.C. 685/2008 Page 5 of 7 Limited v. Special Judicial Magistrate, (1998) 5 SCC 749 has held that:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
10. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code and held that such powers could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or rigid and were to be applied after consideration of the facts and circumstances of each case. One of such guideline was where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not Crl.M.C. 685/2008 Page 6 of 7 prima facie constitute any offence or make out a case against the accused, then the High Court could exercise its inherent jurisdiction to quash the proceedings.
11. In my considered opinion the complaint lacks any specific averment which would indicate the criminal role of the petitioners in the publication of the said article and it seems to be a fit case for interference by this Court to prevent the abuse of process of the court. Accordingly, the complaint and the impugned summoning orders qua the petitioners are hereby quashed.
12. The petition stands allowed.
M.L. MEHTA, J.
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