Karnataka High Court
B V Seetaram vs Krishna J Palemar on 14 December, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO.6709 OF 2016
Between:
1. B V Seetaram
S/o Late Venkatramana
Aged about 61 years
Chairman and Director
Chitra Publications Pvt. Ltd
400-C, Industrial Area
Baikampadi, Mangalore-575011
2. Rohini Seetaram
Aged about 53 years
Managing Director
Chitra Publications Pvt Ltd.,
400-C Industrial Area
Baikampadi, Mangalore-575011
... Petitioners
(By Sri: K S N Karanth, Advocate)
And:
Krishna J Palemar
S/o Late J Mallappa
Aged 60 years
2
Kodial Guttu East,
Mangalore-575003
... Respondent
(By Sri: Virupakshaiah, Advocate)
This Criminal Petition is filed under Section 482 Cr.P.C
praying to quash the entire proceedings in PCR.No.59/2016, now
numbered as C.C.No.1567/2016 pending on the file of the JMFC-II
Court, Mangalore for the offence P/U/S 120B,500 read with 34 of
IPC.
This Criminal Petition coming on for admission this day, the
Court made the following:-
ORDER
Heard the learned Counsel for the petitioners and the learned Counsel for the respondent.
2. The petition coming up for admission is considered for final disposal having regard to the facts and circumstances.
3. The petitioners herein are arrayed as accused Nos.1 and 2 alongwith the other who is named as accused No.3 in Crl.Case No.1567/2016 on the file of the learned JMFC, II Court, Mangaluru for the offence punishable under Sections 120B, 500 read with Section 34 of Indian Penal Code, 1860. 3
4. The background of the case is as follows:
The Kannada daily newspaper under the name and style of 'Karavali Ale' is said to be owned by 'Chitra Publications (P) Ltd.,' Mangaluru. The petitioner No.1 is said to be the Chairman and Director and petitioner No.2 is the Managing Director of the said company. Accused No.3 is Printer, Editor and Publisher of the newspaper. In a private complaint by the respondent herein, the respondent who is said to be the Chairman and Chief Executive Officer of a real estate construction company namely 'M/s Landlinks' and also a former member of the State Legislative Assembly belonging to the Mangaluru North constituency and who was also said to be a Minister in the Government of Karnataka, before he resigned in the month of February, 2012, on account of being embroiled in a incident where he was caught viewing a pornographic video played on his mobile, has alleged that though the present petitioners were shown as owners of a publishing company namely 'Chitra Publications', were actually managing and controlling the publishing and editing activity of the newspaper and accused No.3 is only an Editor in name and it is the petitioners 4 who are actually editing the content of the newspaper on a daily basis. It is further alleged that on certain pre-conceived notions against the respondent, they have published false and scurrilous material, which had constrained the respondent to file two civil suits in OS No.118/2011 and OS No.65/2013 on the file of the Court of the Senior Civil Judge, Mangaluru and there was also an order of prohibitory injunction against the petitioners restraining them from publishing false and defamatory articles against the respondent.
It is stated that the respondent had shown that he was living in Bengaluru and had filed a suit even in Bengaluru in OS No.5287/2010 before the City Civil Court making similar allegations against the petitioners. However, there was no order of injunction in that suit. The suit itself was disposed of on 04.12.2012. It was said to be the complaint of the respondent that notwithstanding the said prohibitory injunction, the petitioners continued to publish defamatory articles against him with an intention to defame the respondent. Namely in an edition on 14.08.2015 of the said newspaper, there was a caption "Two 5 honchos fight for power in RSS Mangalore Division" and "Prakash is planning to bring Palemar into fray". Meaning thereby that one wing of 'Rashtriya Swayam Sevak Sangh' was planning to select the respondent as a candidate for Mangaluru South Constituency, but the workers and other leaders of the party were not agreeable to the candidature, as the respondent was embroiled in controversies.
Similarly, there was yet another news item dated 22.08.2015 again indicating that there was disagreement in the Sangha Parivar about the candidature of Palemar and Satyajit and the respondent was alleged to have a dubious background. Similarly, there was yet another report on 29.08.2015 with reference to the blue film incident in which the respondent is said to have been involved and a further report on 29.02.1016 under a caption "Palemar sand mafia king; became MLA and minister through money power - Counters Mr.Rai, the District Minister". There are other reports of 20.04.2016, 23.04.2016 and 25.04.2016, citied, again casting aspersions on the character of the respondent. Therefore, a criminal complaint was instituted against the petitioners as well as another, as already stated, and the Court below having taken 6 cognizance and having issued summons to the petitioners, the petitioners are before this Court.
5. It is contended that as per Sections 3 and 5 of the Press and Registration of Books Act, 1867, (hereinafter referred to as the 'PRB Act', for brevity) every newspaper shall contain the names of the Printer, Publisher, Editor and Owner. As per Section 7, in any legal proceedings, whether, Civil or Criminal, a declaration of a copy of the newspaper containing the name of Editor, Printer and Publisher shall be sufficient evidence as to who can be sued, if necessary, or can sue, against whom alone the presumption under Section 7 of the Act can be drawn. It is pointed out that there is no averment in the private complaint that the petitioners were instrumental in selection of the news items which are published in the newspaper, which would make them Editors under Section 1 of Sub Section (1) of the Act. The general accusation against the petitioners would not be sufficient to hold that they actually controlled the selection of the news items. 7
6. Apart from this, other legal contentions are also raised. The primary point for consideration in the present petition according to the learned Counsel for the petitioners would be "whether the petitioners may be prosecuted for the alleged defamatory materials, which is the subject matter of the criminal complaint in the presence of a named Editor and having regard to the status of the petitioners indicated in terms of the provisions of the PRB Act, as Chairman and Managing Director, respectively, of the publishing company.
7. It is pointed out that Section 7 of the Act would give an indication that only an Editor would be responsible for the contents of the newspaper and reliance is placed on the judgment of K M Mathew Vs State of Kerala and another reported in AIR 1992 Supreme Court 2206, wherein it is laid down that the presumption under Section 7 of the Act is only against the person whose name is printed as Editor as required under Section 5(1) of the Act. Reliance is also placed on the case of Sri S Nihal Singh and Others Vs Arjan Das reported in 1983 Crl.L.J 777, wherein it is laid down that the presumption as to responsibility for the 8 contents of the newspaper could be raised only against the Editor whose names appears in the declaration published in the newspaper.
8. It is further pointed out that even in a case where there may be a Executive Director or a Managing Editor and a Resident Editor apart from an editor, if there is no allegation against them showing that they had a hand in the selection of the matter which is published in the newspaper, the presumption under Section 7 of the Act against them would not be attracted and the order issuing process against them to face a trial for defamation was not proper as laid down in the case of Prabhu Chawla and Others Vs A U Sheriff reported in 1995 Crl.L.J 1922 (Kar).
9. On the other hand, the learned Counsel for the respondent would vehemently oppose the petition and points out that the arguments of the petitioners cannot be accepted. A learned Single Judge in Crl.P.No.5873/2012 dated 19.10.2012 in the case of B V Seetharam and Others Vs State of Karnataka and another, where there was the involvement of the Managing Director as well as an Editor of the newspaper, this Court had held that whether the 9 petitioners therein were Managing Director or Editor, and the nature of the publication in the newspaper in question was a question of fact and the parties are certainly entitled to lead evidence on the issue. Therefore, the Court acting under Section 482 Cr.P.C could not decide the controversy between the parties and therefore had left the parties to work out their defence in the course of the trial.
10. Yet another decision of a learned Single Judge of this Court in Crl.P.No.4043/2010 dated 05.10.2010 in the case of B V Seetharam and another Vs Stateby Sagara Town Police Station and another, wherein the learned Single Judge placed reliance on the decision of Supreme Court in K M Mathew Vs K A Abraham and Others reported in (2002) 6 Supreme Court Cases 670 has followed the dictum laid down therein that the complainant can still allege and prove that persons other than an Editor had knowledge and they were responsible for publication of the defamatory news item and the presumption under Section 7 of the Act was a rebuttable presumption and therefore, it was difficult to accept the contention that the petitioners as the Chairman and 10 Owner were not liable for prosecution. The learned Counsel would submit that the said decision would apply to all fours to the present case on hand.
11. However, it has to be found that in the case of K M Mathew Vs K A Abraham which is relied upon by the learned Single Judge, the appellants therein were not the owner or the Managing Director of the Publishing Company, but were the Managing Editor, Chief Editor and the Resident editor respectively, of the newspaper publication. It is in that context, that the Supreme Court has laid down that it would be for the Editor by whatever name called to establish that he had nothing to do with the contents of the newspaper. Therefore, the analogy drawn to apply to the Chairman and Managing Director of the Publication company seems to be out of place.
12. Similarly, in so far as the decision of yet another learned Single Judge in Crl.P.No.5873/2012 dated 19.10.2012, it is noticed that it is a cryptic order without any reference to the provisions of the PRB Act, or the case law. Hence, it may safely be said that the very idea of naming the Editor of a newspaper 11 publication is to hold him responsible for its contents. In other words, the publisher or the owner of publishing company would not normally be expected to be involved in the day to day edition of the newspaper or in controlling its contents.
13. The learned Counsel for the respondent had even sought time to produce a decision or an authority where it may be said that the owner and publisher of the newspaper can be equally liable alongwith an Editor for any defamatory or scurrilous material published in a newspaper. The learned Counsel has not been able to produce any such decision. Therefore, the decision in K M Mathew's case, where the Supreme Court has considered that a Resident Editor or Chief Editor or an Editor can all be proceeded against as enabling a proceeding against others cannot be equated considering their role as Chairman or Managing Director of the publishing company, as in the case on hand. Hence, the proceedings against the petitioners are misconceived and are to be quashed.
12
Accordingly, the petition is allowed. The proceedings pending against the petitioners in CC No.1567/2016 before the JMFC II Court, Mangaluru stands quashed.
Sd/-
JUDGE *bgn/-