Sikkim High Court
A.K. Jain And Anr. vs State Of Sikkim And Anr. on 2 December, 1991
Equivalent citations: 1992CRILJ843, AIR 1992 SIKKIM 20
ORDER R. Dayal, J.
1. This application has been moved under Sections 561-A and 439 of the Code of Criminal Procedure, 1898, which Code is still in force in the State of Sikkim, for quashing the Order dated 9-8-1991 summoning the applicants to face a criminal charge under Sections 500, 501 and 502 of the Indian Penal Code, passed by the learned Judicial Magistrate (East and North) Sikkim in Criminal Misc. Case No. 26 of 1991, registered on the complaint petition by respondent No. 2.
2. Messers Bennett Coleman and Company Ltd., is carrying on the business of printing and publishing various newspapers, magazines, peridicals and weeklies from various parts of the country and one of the dailies published by this Company is Nav Bharat Times. Applicant No. 1, Shri A. K. Jain, is the Chairman and Applicant No. 2, Shri Samir Jain, is the Managing Director of the Company. The criminal proceedings arose from a news item published by the Nav Bharat Times on 11-12-90 with the heading "Dalmia Samooh ki kar chori pakari gayi", which purported to expose the laundering of black money into white giving details about the searches made by the Income Tax Department at the houses and offices numbering about 70 of the companies connected with M/s. Dalmia Bros. Narrating the modus operandi, it was stated that five companies including Sovereign Commercial Private Limited which is respondent No. 2 and one other, namely, Mansarover Commercial Private Limited which had filed a similar complaint in the same Court earlier, were registered at Gangtok. Therefore, a composite notice dated 22-1-91 was sent by Shri R. B. Subba, advocate on behalf of all these five companies to seven persons including the applicants alleging, inter alia, that the said publication had been made mala fide with the motive of vilifying the name and reputation of these companies, undermining their business. By this notice, the addressees were required to tender unconditional apology as per the draft enclosed therewith and to publish the same on the front page of the newspaper with the same prominence with which the news item had been published within 48 hours of the service of the notice, failing which civil and criminal proceedings were threatened. The petitioners sent a reply to this notice on 11-2-91 through Shri P. R. Seetharaman. Advocate mentioning therein that his clients were Chairman and Vice-Chairman and Managing Director respectively of the company known as M/s. Bennett Coleman and Company Ltd., the publishers of the Nav Bharat Times from various places, and the Board of Directors had entrusted the editorial responsibility to Shri Rajendra Mathur. Chief Editor and the said paper was printed and published by Shri Ramesh Chandra, Executive Director. It was further mentioned that his clients did not take any part in gathering news and/ or in editorial matters including printing and publishing of the newspaper and as such they had no direct knowledge of what was printed and published, and they were only concerned with the general policy of the newspaper and business aspect of the same and so the notice was uncalled for and unjustified.
3. Thereafter, a criminal complaint which was registered as Criminal Misc. Case No. 10 of 1991 in the Court of the Judicial Magistrate East and North Sikkim, was filed by one of the five companies mentioned above, namely, M/s. Mansarover Commercial Private Limited against six persons: the first two being the present applicants, and others being Shri Rajendra Mathur who was the Chief Editor, since deceased. Shri Ramesh Chandra, the printer and publisher, Shri Surinder Pratap Singh, Executive Editor, and Shri Sanjay Pugalia, the author of the impugned item. It was alleged in the complaint that the above mentioned item was defamatory against the complainant company and had directly or indirectly harmed and injured its reputation and credibility. In paragraph 8, the complainant company alleged to have had reason to believe that the said news item had been written and published at the instance of and in furtherance of the common intention of all the accused persons who were out to harm the complainant company by publishing the above mentioned item. Paragraph 17 alleged that all the accused persons had in active connivance with each other and "with common malign" defamed the complainant company by publishing the item with the intention of causing harm, knowing or having reason to believe that the said publication would harm its reputation and credibility. All the accused were alleged to have committed offences under Sections 500, 501, 502 read with Sections 34 and 109 of the Indian Penal Code. The same Magistrate who has passed the impugned order of the present Revision, passed an order dated 7-3-1991, after recording the evidence of two witnesses, summoning all the accused persons, including the present applicants, to face the charge under Sections 500, 501, 502, 109 and 34, I. P. C. That order was challenged by the present applicants in Criminal Revn. No. 1 of 1991 before this Court. Vide judgment dated 5-8-1991 (reported in 1992 Cri LJ 839) this Court allowed the Revision, holding that neither the complaint disclosed any facts, nor was there any evidence nor any presumption under the Press and Registration of Books Act, 1867 (hereinafter referred as the Press Act) so as to make out a prima facie case against the applicants for making, editing, printing or publishing the offending news item and so the issue of process against them by the learned Magistrate was an abuse of the process of Court. This Court observed:
5. In the present case, the complaint does not disclose any facts so as to connect the applicants with the publication. The mere fact that applicant No. 1 is the Chairman and applicant No. 2 is the Managing Director of the Company that carries on, amongst other businesses, the business of printing and publishing the Nav Bharat Times is, by itself, not sufficient to make them liable for the publication. Paragraph 8 of the complaint runs as under:--
8. That the Complainant has reason to believe that the above said article was written and published at the instance of, in furtherance of a common intention of all accused persons who are out to harm the complainant company by publishing the above said false, malicious and defamatory articles against the Complainant Company.
This paragraph states the belief of the complainant rather than the facts that the news item in question was written and published at the instance or in furtherance of the common intention of all the accused persons. The facts on which the belief could be based have not been alleged. As regards evidence, the only evidence on the point is the statement of Shri Rakesh Maggo, (P. W. 1) who is the Director of Messers Mansarover Commercial Private Limited, the complainant to the following effect;
The above said Nav Bharat Times is managed and owned by accused persons in their respective possession as Chairman, Managing Director, Chief Editor, Printer and Publisher, Executive Director author of the said articles as given in the complaint.
6. The fact that the Nav Bharat Times is managed by the applicants as Chairman and Managing Director does not amount to an evidence of the fact that these persons were concerned with the making, printing or publishing of the item. Thus, there is no evidence whatsoever as to the common intention or participation of the applicants in the publication of the item.
4. Further, the Court found the order of the learned Magistrate to be extremely vague and made the following comments:
2. ... On 7-3-91, the Learned Magistrate passed the impugned order summoning all the accused, expressing the view that the complainant has made out a prima facie case under Sections 500, 501, 502, 109 and 34, I.P.C. But he has not indicated on what specific materials he found a prima facie case against the applicants, as he has stated that his view is based on a consideration of the submissions of the learned counsel for the complainant and on a perusal of the exhibits (documents) before him. This statement is too vague to give an insight into the mental process which could have led him to hold that view. This much is, however, clear that he did not find any thing in the oral evidence to be of relevance against the applicants. Certainly, the submissions of a counsel cannot take the place of oral evidence or other materials on which a person can be called upon the answer a criminal case. The documents, he had in contemplation, he has not specifically mentioned to show which documents, in his view, made the applicants responsible for the publication and in which manner. He saw virtue in being vague, rather than specific, exposing himself to the allegation from the applicants that the impugned order suffers from non-application of mind....
5. Accordingly, this Court quashed the order summoning the applicants which was made on the complaint filed by M/s. Mansarover Commercial Pvt. Limited, on 5-8-91 (reported in 1992 Cri LJ 839). On that very date, another complaint, as a result of which the present Revision has arisen, was filed by the other company M/s. Sovereign Commercial Pvt. Limited before the same Magistrate with respect to the same subject matter and on almost identical allegations, with only very minor differences. One difference is that whereas in the previous complaint six persons were impleaded as accused, in the subsequent complaint only five have been impleaded. That has been so, because Shri Rajendra Mathur who was impleaded, being the Chief Editor, was no more at the time of the filing of the subsequent complaint. The other difference is that in paragraphs 5 and 6 of the second complaint, some additional allegations have been made in continuation of the attempt to connect the applicants with the publication. The learned Magistrate recorded the evidence of three witnesses under Sections 200 and 202 of the Code of Criminal Procedure. Notwithstanding the fact that a copy of the judgment of Criminal Revision No. 1 of 1991 (reported in 1992 Cri LJ 839) had been received in his office on 6-8-91, he again passed on 9-8-91, a similar order summoning all the accused persons, in single minded persistence in vagueness, again without indicating on what specific materials and by what mental process he found a prima facie case against the applicants.
6. 16-11-91 was fixed for hearing of the Revision. Only 2 days earlier, that is, on 14-11-91, an application was filed on behalf of respondent No. 2 for adjournment on the ground that the learned counsel who had to appear had sent a communication indicating some personal difficulty to appear and conduct the case on the date fixed for hearing. The filing of the application had been unduly delayed since, admittedly, not less than 10 days earlier, that is, on 4-11-91, the learned counsel had indicated his intention to seek adjournment. On account of the delay the application could not be taken up for disposal before the date of hearing. Earliest, the application could be taken up for hearing, could be 15-11-91 and that too at a time when the learned counsel for the applicants must have already left Delhi for Gangtok, on 16-11-91, Shri N. Natarajan, Senior Advocate, learned counsel for the applicants, having arrived from Delhi was already present for arguments. A counsel who comes from Delhi to Gangtok for the purpose of any hearing has to spend at least three days, one day for coming, the other for hearing and the third for going back. Therefore, an adjournment in such circumstances would mean a lot of inconvenience and expense to the party that has taken necessary steps for the conduct of the case. Besides, respondent No. 2 had got sufficient time to engage an alternative counsel. Naturally, the application was opposed. After hearing arguments, the application was rejected for the reasons mentioned in the order sheet with the consequence that arguments were advanced on behalf of the applicants by Shri N. Natarajan. On behalf of respondent No. 1, the State, no arguments were advanced. Shri T. B. Thapa who appeared on behalf of respondent No. 2 was not ready for the arguments. In the circumstances, oral arguments were concluded. However, respondent No. 2 was granted time till 23-11-91 to file a list of authorities with brief synopsis showing how the authorities would support the case. Respondent No. 2 filed written arguments and sought to rely on the following decisions: (a) 1986 Cri LJ 1987 (Bombay); (b) AIR 1982 SC 784 (2) ; (1982 Cri LJ 629 (2)); (c) AIR 1976 SC 1947 : (1976 Cri LJ 1533) and (d) AIR 1960 SC 866 : (1966 Cri LJ 1239).
7. Mr. Natarajan, has urged that successive complaints in respect of the same subject matter cannot, in law, be filed except in very exceptional circumstances and once it was held by this Court that issue of summonses against the applicants was an abuse of the process of the Court and the order issuing the summonses was quashed, it was not open to the learned Magistrate to issue summonses again to the applicants, in respect of the same publication, without indicating the existence of any exceptional circumstances justifying the issue of fresh processes. The learned counsel urged that the order of the learned Magistrate issuing the fresh processes against the applicants was not only an abuse of the process of the Court but was also in derogation of the authority and dignity of this Court and so amounted to contempt of Court, both for acting in violation of the decision made in the earlier Revision and also for not following the law laid down by this Court which was binding on him. According to the learned counsel, this is a matter of great public interest in which the Court should act suo motu, in the interest of the dignity of the High Court as an institution and also to safeguard the interest of his clients who, if things continue the same way, may have to face three more cases, the total number of companies referred in the publication being five. The learned counsel also urged that there is no presumption against the holders of the office of the Chairman or of Managing Director, of being aware of the contents of the publication and there is also nothing in the complaint or evidence to make out a prima facie case to show that the applicants were in any manner personally responsible for the publication.
8. Making or publishing of an imputation is an essential ingredient of the offence of defamation. It is not possible for any one to make or publish an imputation without having personal knowledge about it. There is no law providing for vicarious liability in respect of defamation, as is provided, for instance, by the Prevention of Food Adulteration Act, 1954, by the use of the expression "shall himself or by any person on his behalf" in Section 7 and by Sub-section (1) of Section 17 which inter alia provides that where an offence has been committed by a company where no person has been nominated under Sub-section (2) every person who at the time the offence was committed and was in charge of, and was responsible to, the company for the conduct of the business of the company shall be deemed to be guilty of the offence. Therefore, in respect of a defamatory item published in a newspaper owned by a company, every person who was in charge of, and was responsible to, the company for the conduct of its business, is not to be deemed to be guilty. It is only the person who could be said to be personally responsible for its making or publishing that may be proceeded against. The legislature took into account the extreme inconvenience and hardship to which a person aggrieved from a publication would be put, if he would have to make a fishing or roving enquiry about the persons who personally would be responsible for the making or publishing of an offending matter, particularly, where the paper is owned by a big company employing numerous persons. After referring to the Preamble to the Press Act, the Supreme Court pointed out in Mohammad Koya v. Muthukoya AIR 1979 SC 154 that "in order to avoid multiplicity of suits and uncertainties of liabilities, it was considered necessary to choose one of the persons from the staff and make him liable for all the articles or matters published in the paper so that any person aggrieved may sue only the person so named under the provisions of the Press Act and is relieved from the necessity of making a fishing or roving enquiry about persons who may have been individually responsible for the offending matters published in the paper." Section 5 of this Act, inter alia, provides in Sub-section (1) that every copy of a newspaper shall contain the name of the editor thereof printed thereon, and in Sub-section (2) for the making of a declaration by the printer and the publisher in the prescribed form. Section 6 provides for the authentication of such a declaration. Section 7 reads as under:
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 declaration, 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.
As observed by this Court while deciding Criminal Revn. No. 1 of 1991, (reported in 1992 Cri LJ 839) a person declared to be the printer is to be presumed the printer, a person declared to be the publisher is to be presumed the publisher; and a person whose name is printed as editor, is to be presumed the editor. Under Section 1 (1), "Editor means a person who controls the selection of the matter that is published in a newspaper." So, unless the contrary is proved, the person shown to be the editor is responsible for the contents of the newspaper and the persons declared to be the printer and the publisher are responsible as printer and publisher. There is no presumption that the Chairman or the Managing Director of the Company that owns a newspaper is responsible for the selection of the matter that is published in a newspaper or for its printing or publishing. The Supreme Court observed in State of Maharashtra v. R.B. Chowdhari AIR 1968 SC 110 : 1968 Cri LJ 95-
7. ...The term 'editor' is defined in the Act to mean a person who controls the selection of the matter that is published in a newspaper. Where there is mentioned an editor is a person who is responsible for selection of the material. Section 7 raises the presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly was printed as the Editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper. It may not be out of place to note that Madane admitted that he had written this article. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question. On the whole therefore the order of discharge made by the learned single Judge appears to be proper in the circumstances of the case and we see no reason to interfere.
(Emphasis supplied)
9. It is significant to note that the presumption as to the person responsible for selection of the matter that is published in a newspaper is only against the editor and not even against the chief editor; the reason being that the expression 'Chief Editor' is not to be found in the Press Act. The Supreme Court observed in Mohammad Koya's case (supra) (AIR 1979 SC 154) at page 160. "The word 'Chief Editor' is clearly absent from the Press Act and in fact foreign to it because the Press Act has selected only one person who has a special status and that is the editor who can be sued, if necessary, or can sue and against whom alone a presumption under Section 7 of the Press Act can be drawn." Again, it was observed at page 162, "Secondly, the Press Act does not recognise any other legal entity except the editor insofar as the responsibilities of that office are concerned. Therefore, mere mention of the name of the Chief Editor is neither here nor there, nor does it in any way attract the provisions of the Press Act particularly Section 7." The Chairman or the Managing Director of the company owning a newspaper is neither the editor, nor the printer nor the publisher and, in law, there is no presumption against the holders of these offices as to editing or publishing of the contents of the newspaper, even though they are, by reason of the offices held by them, incharge of, and responsible to, the company for the conduct of its business.
10. There being no presumption arising under the Press Act against the applicants to make them personally responsible for the offending news item, and assuming for the purpose of the present proceeding the news item to be defamatory, it is beyond the pale of controversy, that the applicants could not be proceeded against, without the complainant having made a prima facie case that they had, at least, personal knowledge about the contents of the item, before it was published. The object of an inquiry under Section 202 of the Code of Criminal Procedure is to ensure that no person shall be compelled to answer a criminal charge unless the Court is satisfied that there is a prima facie case against him. The law as to the scope and extent of enquiry under Section 202 is well established. As observed in Pramatha Nath v. Saroj Ranjan AIR 1962 SC 876 : 1962 (1) Cri LJ 770 in para 48. "The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and Section 203 lays down what materials are to be considered for the purpose. Under Section 203, Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding." The enquiry into the truth or otherwise of the complaint is to be made not with a view to finding out whether the evidence produced would be sufficient to hold the accused guilty but only to decide whether there is sufficient ground for proceeding against the accused. Therefore, the Magistrate at this stage has not to embark on a critical analysis of the evidence produced before him or to enter into a detailed discussion of the merits or demerits of the case and has merely to ascertain whether there is evidence in support of the complaint so as to justify the issue of process against the accused. He has to do this with reference to the intrinsic quality of the statements made before him and after taking into account the inherent improbabilities, if any, on the face of the complaint and the evidence adduced. He must apply judicial mind to the question whether the evidence adduced before him constitutes any legal evidence. The Supreme Court observed in R.P. Kapur v. State of Punjab AIR 1960 SC 866 : 1960 Cri LJ 1239:--
(6) ...A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person to constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained....
Again the Supreme Court observed in Chandra Deo v. Prokash Chandra AIR 1963 SC 1430 : 1963 (2) Cri LJ 397 :--
(8) ...No doubt, as stated in Sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.
In Nagawwa v. Veeranna AIR 1976 SC 1947 : 1976 Cri LJ 1533, after referring to the earlier decisions in Chandra Deo v. Prokash Chandra AIR 1963 SC 1430: 1963 (2) Cri LJ 397 and Vadilal Panchal v. Dattatraya Dulaji AIR 1960 SC 1113 : 1960 Cri LJ 1499, the Supreme Court said that the scope of inquiry Under Section 203 of the Code of Criminal Procedure is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether a prima facie case for issue of process has been made out. Then it was observed --
5. ...It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complaint in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused....
Thereafter, by way of illustrations, to provide sufficient guidelines, it was pointed out that in the following cases an order of the Magistrate issuing process against an accused can be quashed or set aside:
(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
It is thus clear that to decide whether a process should or should not be issued, the Magistrate has to consider whether the complaint discloses all the essential ingredients of an offence. If the complaint does not disclose any essential ingredient of an offence, that will be a case where the complaint, taken on its face value, does not make out any case for issue of a process. Where, however, the allegations disclose the essential ingredients but are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against an accused, then also the complaint has to be rejected. Where the complaint does not suffer from any such defect but the evidence is such as not to amount to any legal evidence or is inherently improbable, then also the issue of process would be an abuse of the process of the Court. The issue of process under Section 204 or dismissal of complaint under Section 203 is a matter for judicial determination and where the order summoning the accused does not show application of mind of the magistrate and discusses no evidence, the order, not being a speaking order, is liable to be quashed. To be valid, the order summoning an accused should not be capricious or arbitrary. In a defamation case arising from publication of an article in a newspaper, which is per se defamatory, an order of summons may issue without hesitation against the author of the article and the editor, printer and publisher of the newspaper, but before process is issued against any other person, the magistrate has to satisfy himself that the complaint has alleged necessary facts and there is some legal evidence to show that he was personally concerned with the making or publishing of the article. However, where neither facts are alleged, nor evidence is produced to show the personal involvement of such person, order of issue of process against him cannot be justified.
11. The complainant, in the instant case, seeks to make the applicants personally responsible for the offending news item on the basis of the following allegations made in the complaint:
5. ...All the aforesaid accused, in their capacities of Chairman, Managing Director, Editor, Printer & Publishers and Reporter are incharge of and fully responsible for the conduct of the affairs of the company. They are mainly concerned with the formulations of guidelines and the policies under which the aforesaid newspaper Nav Bharat Times was to be edited, printed and published and circulated for sale. It is common knowledge that any defamatory or other articles having ramifications affecting political, industrial or commercial personalities, cannot find place in the newspaper without a decision only after knowledge, approval and consent being taken at the highest level. In the instant case also, the story referred to above against Dalmia Group of Companies and Dalmia family and the Complainant Company is the handwork of the aforesaid accused who had been gathering information from sources best known to them and editing, printing, publishing and circulating for sale the above story, which is highly defamatory of the complainant-company and others besides being scandalous, false and mischievous. All the aforesaid accused, thus, voluntarily and readily became pawns in the hands of unscrupulous persons inimically disposed against the complainant-company and the Dalima Samooh referred to in the said captioned article to malign them and tarnish the image of the complainant-company and other concerned, beyond repair.
6. That, admittedly, there is a Board of Directors of M/s Bennett Coleman & Co. Ltd., which lays down the guidelines and policies which are to be carried out for the newspapers including the said daily Nav Bharat Times Accused No. 1, Ashok Jain and Accused No. 2, Shri Samir Jain are very prominent members of that Board being Chairman and Managing Director. It is unimaginable that without their consent, permission, concurrence and approval and prior knowledge such highly respected and internationally known industrialists as Dalmias could be defamed in such a brazen and crude way. Besides, the sale proceeds of newspapers carrying such sensational though false and frivolous story about Dalmia Samooh' and the Complainant Company in the shape of huge profits go to the coffers of accused Nos. 1 and 2 being directly at the helm of affairs of the newspapers. These two accused Nos. 1 and 2 are actively associated with and directly managing the affairs of the company, of which, publication of Nav Bharat Times newspaper is an important part. They are, thus, directly incharge of and responsible for the conduct of the affairs of M/s Bennett Coleman & Co. Ltd., which prints, publishes Nav Bharat Times daily newspaper also. Both these accused, besides others, being fully aware of the goings on of the said newspaper, and with prior knowledge of the said defamatory article in their newspaper got the said newspaper published, printed and sold which they could have prevented and especially so, when they were served with a registered A.D. notice inviting their due attention to the said highly defamatory article, referred to above, calling upon them to look into it, express regrets so as to close the matter. The reply to the notice by and on behalf of the accused persons further confirms that not only the accused actively associated with the printing, publishing and circulating for sale the impugned defamatory article, but also refused to express regrets after the same was brought to their notice in writing.
7. That, as has been stated above, the complainant-company enjoys immense reputation, goodwill and sound status in the State of Sikkim and across India and by attributing highly defamatory imputations in the aforesaid captioned article "Dalmia Samooh Ke Kar Chori Pakri Gai", all the accused persons have defamed the complainant-company and its directors and others concerned with it by publishing and printing and circulating for sale the said highly motivated, frivolous, scandalous and defamatory story....
11. That all the aforesaid accused, namely; S/Shri Ashok Jain, Samir Jain, Surinder Pratap Singh, Ramesh Chandra and Sanjay Pugalia, in furtherance of the common intention of them all, thus, committed criminal offences punishable under Sections 500/501/502 of the Indian Penal Code read with Sections 34/109/114 Indian Penal Code for laying the policy and for actually editing, printing, publishing, circulating for sale in India including Gangtok (Sikkim) and abroad, the daily newspaper Nav Bharat Times edition of 11-12-1990 containing the above defamatory story captioned "Dalmia Samooh Ki Kar Chori Pakri Gai....
(Emphasis supplied) It is evident that as per the allegations in the complaint, the applicants are responsible for editing, printing or publishing of the offending item, not because of something actually having been done by them in respect of any of these acts, but because of being prominent members of the Board of Directors of the Company, owning the newspaper, and so being concerned with the formulations of the guidelines and the policies of the paper and being in charge of, and responsible for, the conduct of the business of the company. The petitioner itself does not know about the actual role played by the applicants with respect to the offending item and this is amply clear by the use of the expressions "It is common knowledge" "from sources best known to them," "It is unimaginable" "became pawns in the hands of unscrupulous persons" and "They are mainly concerned with the formulations of guidelines and the policies". The allegations are based not on any direct knowledge derived from any individual but on conjectures and presumptions, which the Press Act does not permit to be raised. Evidently, conscious of the fact that the applicants are not personally responsible for these reasons, the complainant has sought the aid of Sections 34, 109 and 114. But again the complainant could not allege necessary facts to show prior meeting of minds of the accused, essential to make out a case of common intention or participation of the applicants. The allegations do not also make a case of abetment. It may be mentioned that the fact that these allegations were based on belief or conjecture rather than knowledge was made bare in the previous complaint, where the complainant stated :
8. That the complainant has reason to believe that the above said article was written and published at the instance of or in furtherance of a common intention of all accused persons who are out to harm the complainant company by publishing the above said false, malicious and defamatory articles against the complainant company.
This invited the comment in the previous judgment:
This paragraph states the belief of the complainant rather than the facts that the news item in question was written and published at the instance or in furtherance of the common intention of all the accused persons. The facts on which the belief could be based have not been alleged....
The subsequent complaint omits the expression "the complainant has reason to believe", but it does not make any difference in substance for the reasons stated above. Thus the complaint does not disclose essential ingredients to make out a prima facie case against the applicants. Besides, the evidence produced also amounts to no legal evidence to make the applicants liable for the publication. Though three witnesses were produced by the complainant, only one of them namely, M. M. Sharma a director of the complainant company, has deposed on this point. After referring to the designations of the several persons impleaded as accused, he has stated that all the accused persons are the concerned persons and are directly in charge of and responsible for, the conduct of the affairs of the company which publishes the newspaper. It is thus evident, as per the evidence adduced, the applicants are said to be responsible only because of the offices held by them. As stated earlier, there is no presumption in law against the holders of the offices of the Chairman and Managing Director of the Company owning a newspaper about making or publishing of a defamatory item published in a newspaper.
12. Of the four cases on which respondent No. 2 has sought to rely, two, i.e. reported in AIR 1960 SC 866 : 1960 Cri LJ 1239 and AIR 1976 SC 1947 : 1976 Cri LJ 1533 have already been referred. The third is Khacheru Singh v. State of Uttar Pradesh AIR 1982 SC 784 (2) : 1982 Cri LJ 629 (2). There, the Supreme Court observed :--
2. ... All that the learned Magistrate had done was to issue a summons to respondent No. 2 -- Satyavir Singh. If, eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing "summons" to the accused should be quashed....
This judgment is a very short one running into half of a column of a page. It is evident that the above observation was made on the assumption that there was a prima facie case against the accused. There is nothing contrary to what was laid down in the cases referred earlier.
13. The other case referred is Ashok Kumar Jain v. State of Maharashtra 1986 Cri LJ 1987, in respect of a similar matter concerning the Nav Bharat Times. That was also a criminal revision. Applicant No. 1 was Sri Ashok Kumar Jain, the same person who is applicant No. 1 in the present case, and applicant No. 2 was Dr. Ram Tarneja, the General Manager of the Benett Coleman and Company Limited that owns the newspaper. It was held that the presumption under Section 7 of the Press Act was not available against the applicants and the liability for the publication of the offending news-item could be fastened on them only if the complaint and the documents accompanying the complaint and the statement of the complainant showed that they had such prior knowledge or that they were somehow concerned with the publication of the defamatory news item and that they had the requisite intention to harm the reputation of the complainant by publication of the concerned news item. However, the Court found a prima facie case against all the accused persons and so the Revision was dismissed. But in the present case, for the reasons already stated, facts have been found to be otherwise. Therefore, this decision is of no help to respondent No. 2.
14. Thus in the instant case, neither law raises presumption, nor the complaint discloses any facts, nor is there any legal evidence to make out a prima facie case about the involvement of the applicants with making or publishing of the offending news item, and so there was no material on the basis of which the magistrate could decide that there was a prima facie case to justify issue of process against them. So, the impugned order directing the issue of process against the applicants was an abuse of the process of the Court and has to be quashed, so far as it concerns them.
15. For another reason also process could not be issued against the applicants. Once it was held in the previous case, that the order for issue of process against them was an abuse of the process of the Court and that order was quashed against them, it was not permissible for another person to reopen the same matter, unless there existed exceptional circumstances to justify the second complaint, in the interest of justice. No such exceptional circumstances have been alleged to exist. In the present case, the complainant has alleged one additional fact that the applicants were in charge of, and responsible to, the company owning the newspaper. That was a statement of an otherwise obvious fact, having no legal effect. Even if it be assumed for a moment that it could make some difference, it was something about which it cannot be said, nor was it said, that it could not, with due diligence, have been adduced in the earlier case. In this connection, reference may be made to Pramatha Nath v. Saroj Ranjan AIR 1962 SC 876 : 1962 (1) Cri LJ 770:
(48) ...An order of dismissal under Section 203 Criminal Procedure Code is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into....
(50) Taking first the question of fresh evidence, the view of some of the High Courts that it should be such that it could not with reasonable diligence have been adduced is, in our opinion, a correct view of the law. It cannot be the law that the complainant may first place before the Magistrate some of the facts and evidence in his possession and if he fails he can then adduce some more evidence and so on. That, in our opinion, is not a correct view of the law.
In the instant case, as stated earlier, names of five companies were mentioned in the offending publication. All these five companies issued a composite notice to the accused persons. One of them filed a complaint. The present complainant waited all the time for filing the second complaint, until the Criminal Revision in respect of the first complaint was disposed of by this Court. Surely, the issue of process against the applicants, in the absence of any exceptional circumstances, was an abuse of the process of the Court.
16. Now is for consideration the question whether the making of the order dated 9-8-91 by the concerned magistrate, in so far as it directed the issue of process against the applicants, after he had received on 6-8-1991 a copy of the judgment of this Court in Criminal Revn. No. 1 of 1991 (reported in 1992 Cri LJ 839) with regard to the first complaint filed by M/s Mansarover Commercial Pvt. Limited, makes out a prima facie case of contempt against him and whether the Court should take cognizance thereof suo motu. That, the Judges of interior courts may be proceeded against for contempt both in India and England is not in doubt. In Harish Chandra v. Justice S. Ali Ahmed AIR 1986 Patna 65 : 1986 Cri LJ 320, reference has been made at page 72 (of AIR): (at p. 326 of Cri LJ) to Halsbury's Law of England, 4th Edition, Vol. 9, at page 30, as under:
Judges of inferior courts are punishable by committal for acting unjustly, oppressively or irregularly in the execution of their duty; or for disobeying writs issued by the High Court requiring them to proceed or not to proceed in matters before them.
In India, the legal position has been made clear by Section 16(1) of the Contempt of Courts Act, 1971, which says that subject to the provisions of any law for the time being in force, a Judge, Magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable. That the disobedience on the part of a judicial officer to a specific order of the High Court or deliberate conduct of not following the law laid down in a previous decision of the High Court amounts to contempt of court has the approval of the Supreme Court in Bardakanta Misra v. Bhimsen Dixit AIR 1972 SC 2466 : 1973 Cri LJ 19. There the Supreme Court observed:
15-16. The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.
17. In the instant case, a prima facie case of contempt is made out against Shri P. W. Pulzor, Civil Judge cum Judicial Magistrate, East and North in more than one way. He dealt with both the cases, that is, Criminal Misc. Case No. 10 of 1991 brought by M/s Mansarover Commercial Pvt. Limited and the subsequent Criminal Misc. Case No. 26 of 1991 brought by M/s Sovereign Commercial Pvt. Limited, in respect of the same publication. After this Court quashed the order passed by him directing the issue of the summonses against the present applicants on the previous complaint brought by M/s Mansarover Commercial Pvt. Limited, for the reasons that there was no presumption under the Press and Registration of Books Act, 1867 against them and the facts alleged in the complaint and the evidence adduced did not make out a prima facie case to justify the issue of process against them and so the order amounted to an abuse of the process of the Court, it was implicit in it that no fresh process could be issued against them, on a subsequent complaint on substantially the same allegations in respect of the same subject matter, without there being any exceptional circumstances to justify the issue of process, in the interest of justice. As stated earlier, no such exceptional circumstances existed and whatever additional facts were introduced in the subsequent complaint were inconsequential. Undoubtedly, allowance must be given for erroneous construction of law and unless the disobedience to the decision of the High Court is intentional, no case of contempt may be said to be made out, but, in the present case, the previous judgment was not even referred to and even no attempt was made to show why, notwithstanding the previous judgment, the issue of process in the subsequent complaint was considered justified. This makes out a prima facie case against him for contempt of this court.
18. Looking from another angle also, the same conclusion is reached. In the previous judgment dated 5-8-91 (reported in 1992 Cri LJ 839), this Court held that no presumption under the Press Act arose against the applicants and the type of allegations made and the evidence adduced did not make out a prima facie case against the applicants. The Court further observed that the learned magistrate did not indicate on what specific materials he found a prima facie case against the applicants and that his order was too vague to give insight into the mental process which could have led him to hold that view and this vagueness exposed him to the allegation that the impugned order suffered from non-application of mind. Thus, this Court emphasised the need to give clear reasons for making an order summoning the applicants. But again in the subsequent order which has given rise to this Revision, he has not given any reasons to show how, notwithstanding there being no presumption arising against the applicants, he considered a prima facie case to be made out against them. After referring to the submissions of the learned counsel, he stated:
9-8-91....
Perused the impugned article and other documents filed with the complaint. Also read the statement on oath of the complainant and witnesses. Considering the above facts a prima facie case of defamation punishable Under Section 500/501/502, IPC has been made out....
In the previous order dated 7-3-91, after making a note of the arguments advanced by the learned counsel and of some preliminary facts, he had observed --
Considering the submission of ld. counsel of the complainant and on perusal of the Exts (documents) before me, I am of the view that the complainant has made out prima facie case Under Sections 500, 501, 502, 109 and 34, IPC against the accused persons.
19. A comparison of the two orders would show that in the previous order he did not even mention that he considered the oral evidence adduced before him. This led to the comment that the Magistrate did not find anything in the oral evidence to be of relevance against the applicants and the submissions of a counsel could not take the place of oral evidence or other materials on which a person can be called upon to answer a criminal charge. It is perhaps for this reason that in the subsequent order, he stated that he read the "statement on oath of the complainant and the witnesses" and omitted to mention that he considered the submissions of the learned counsel. It may be pointed out that the Court did not lay down earlier that the submissions of a counsel have not to be considered. The Court has to consider the submissions advanced before him. But though the submissions of the learned counsel have to be considered, the order is to be based on consideration of relevant law and evidence and other materials on record. Once the Court indicated in the previous judgment that it was necessary to indicate the mental process by which the learned magistrate came to a particular conclusion and that the order should not have been vague, it was essential for him, while dealing in respect of a similar matter subsequently to give reasons to show how he considered a prima facie case made out against the applicants. But he neither referred to the material allegations in the complaint, nor to the relevant portions of the evidence or its gist, nor to relevant law and gave absolutely no reasons for his opinion that a prima facie case was made out. He made mention only of the arguments advanced before him, and recorded to have read the offending news item and other documents accompanying the complaint and the statements on oath of the complainant and the witnesses. He did not indicate by which mental process, he found a prima face case against the applicants and why the previous judgment of this Court rendered in Criminal Revn. No. 1/91 (reported in 1992 Cri LJ 839) was not applicable to the facts of the present case. Thus apparently his conduct in not following the law laid down by this Court in that decision was deliberate, making him liable to be proceeded against for contempt of this Court.
20. This is a case where the comments made in the earlier case did not evoke a positive response from him to make him adopt the correct judicial approach and work according to law binding on him. This is a serious matter. However, initiation of contempt proceedings is not the only way to deal with such a matter. I would like to postpone my decision on this matter. For the present, the matter need not be perused further in this judicial proceeding and may be dealt with in a separate file. However, I consider it to be expedient for the ends of justice that both the criminal cases from which the two Criminal Revisions have arisen, and which have to be heard together, are dealt with by another judicial officer. Mr. T. B. Thapa, Advocate now states that Miss Meenakshi M. Rasaily, Civil Judge-cum-Judicial Magistrate, East who is the only other judicial Magistrate posted at Gangtok, had earlier appeared as counsel for respondent No. 2 in the Writ Petitions which arose as a result of the searches made by the Income-tax Department to which the offending news item relates and, therefore, it would be embarrassing for her to deal with the matter. In this situation, there is no other choice except to transfer the cases either to the District and Sessions Judge or to the Additional District & Sessions Judge.
21. In the result, I allow the revision and quash and set aside the order dated 9-8-1991, passed by the Civil Judge cum Judicial Magistrate, East and North in Criminal Misc. Case No. 26 of 91, in so far as the order concerns the applicants. I further direct the transfer of all the proceedings which have arisen from the complaints filed by M/s Mansarover Commercial Private Limited and M/s Sovereign Commercial Private Limited which led to the filing of Criminal Revisions Nos. 1 and 3 of 1991, from the Court of the Civil Judge cum Judicial Magistrate, North and East to the Court of the learned Additional District & Sessions Judge, Sikkim for further proceedings according to law.