Delhi District Court
Sh. Raminder Singh vs Sh. Ashok Jain on 7 October, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE(CENTRAL): DELHI
RBT Criminal Appeal No.68/2013
Old Criminal Appeal No. 18/11(28.02.2011)
In the matter of:
Sh. Raminder Singh,
S/o Late Sh. Harkishan Singh,
D1002, Sun City Heights,
Sector54, Golf Course Road,
Gurgaon. ....Appellant
Versus
Sh. Ashok Jain
B2/4, Safdarjung Enclave,
New Delhi. ....Respondent
Date of Institution: 22.04.2013
Date of Judgment: 07.10.2013
J U D G M E N T
Present appeal has been filed by the appellant, who was accused before Learned Trial Magistrate in complaint case no.23/1/98. Vide impugned judgment dated 01.02.2011, learned Trial Magistrate has held the accused guilty of the offence punishable under Section 500 IPC and vide order dated 03.02.2011 sentenced him to undergo Simple Imprisonment for one year and to pay fine of Rs.5000/, or in 1 default of payment of fine to undergo SI for three months.
2. CoaccusedM/s Bennet Coleman & Co. Ltd., has also been held guilty of the offence punishable under Section 500 IPC and sentenced to pay fine of Rs.10,000/.
3. Substance of accusation levelled against both the accused as available in the notice served upon them on 19.07.2005 before the Trial Court reads as under: "It is alleged against you that you Raminder Singh being resident editor of Times of India daily newspaper, and the company owner of the newspaper published from New Delhi, on 21.02.1997 published imputations at Page 3 Col.1 concerning Mr. Ashok Jain complainant of the case regarding his involvement in criminal cases of murder, attempt to murder and criminal intimidation as you have reasons to believe that such imputations will harm the reputation of Ashok Kumar Jain and you intended to harm his reputation by publishing the news item during the municipal elections of 1997 and committed an offence under Section 500 IPC and within my cognizance."
4. The company was represented by Shri Rajiv Yadav. Since accused pleaded not guilty and claimed trial, complainant stepped into the witness box as PW1 and also examined PW2 Virender Rajput.
5. In his statement under Section 313 CrPC accusedappellant Raminder Singh pleaded as under: "I was the Resident Editor of the paper and there was an Executive Editor and Managing Editor above me. The news item concerned was written by a staff reporter and vetted by the Chief Reporter/Metro Editor who is incharge of the local pages. I never saw this news item before it was published. However, the 2 publication of news item is a matter of record.
Since I had not seen news item before its publication, I did not have the personal knowledge of the facts stated therein. However, on reading the news, I can say that the contents of the news items pertains to general tendencies of political candidates with criminal antecedents contesting elections.
The responsibilities for different sections like metro, business, sports, etc., of the newspaper are entrusted to Section Editors These Section Editors determine and vet the news items to be printed in their section of the newspaper. The contents of the front page are the responsibility of the Resident editor in consultation with the Executive Editor. This procedure is there because the newspaper contains at least 24 pages and the dead line for decision making is very short."
6. So far as coaccused company is concerned, Sh. Rajiv Yadav, its AR when examined under Section 313 CrPC put forth following defence plea: "That the company is the owner of Times of India newspaper and the news publication is the responsibility of Editorial Board consisting of different editors for different sections of the newspaper. The management has no role in selection of news item.
The responsibilities for different sections like metro, business, sports, etc., of the newspaper are entrusted to Section Editors. These Section Editors determine and vet the news items to be printed in their section of the newspapers."
7. Arguments heard. File perused.
8. Learned counsel for the appellant has referred to provisions of Section 5 and 7 of Press and Registration of Act (hereinafter referred to as the Act) and submitted that under these provisions of law every copy of newspaper and every newspaper shall contain name of the 3 owner and editor thereof printed on it and that on production of the copy of newspaper depicting the name of the editor or on production of copy of any declaration under Section 5 of the Act, presumption could be drawn against the editor or printer or publisher so as to hold them liable for publication of the matter in the newspaper.
The contention is that in this case, complainant failed to produce before learned Trial Magistrate copy of declaration under Section 5 of the Act so as to draw presumption as to the printer or publisher of the newspaper or copy of newspaper depicting the name of the editor so as to draw presumption as to the editor of the said newspapers, and as such no presumption could be drawn that Raminder Singh appellant was editor, printer or publisher of the newspaper and criminally liable for publication of the news item.
Learned senior counsel has further contended that Raminder Singhappellant being only a Resident Editor and complainant having failed to prove liability of the accusedappellant for publication of the news item, the appellant is entitled to acquittal.
Learned senior counsel has also submitted that expression 'Editor" does not include Resident Editor and there being no evidence on record to suggest that Raminder Singhappellant controlled the selection of the matter that was published in the newspaper, learned 4 Trial Magistrate could not hold him guilty of the offence under Section 499 punishable under Section 500 of IPC particularly when accusedappellant came up with the plea that the responsibilities for different sections like metro, business, sports, etc., of the newspaper are entrusted to Section Editors, who determine and vet the news items to be printed in their section of the newspapers.
So it has been urged that appeal be allowed and impugned judgment of conviction and sentence be set aside.
9. On the other hand, learned counsel for complainantrespondent has referred to legal notice served upon the appellant and the company and the reply thereto and contended that in reply, appellant nowhere alleged that he was not responsible for publication of the defamatory news or that he had no control over selection over the defamatory matter and as such nonproduction of copy of the newspaper depicting the name of the editor does not come to the aid of the appellant.
Further it has been submitted that in reply to the legal notice, appellant put forth the defence plea that the contents of the news items were true and correct and did not call for any apology. Therefore, the contention raised by learned counsel is that when learned Metropolitan Magistrate has rightly held the accused 5 appellant guilty of the offence under Section 499 punishable u under Section 500 IPC for the reasons recorded therein, the appeal deserves to be dismissed.
Discussion
10. Herein, in the criminal complaint Ashok Kumar Jain - respondent herein first of all described as to how he enjoyed good reputation, had a clean record and no involvement in any kind of controversy. Then he disclosed as to how he had lost election of Indian National Congress (I) for the legislature assembly Delhi, held in 1993. He again contested election of Municipal Corporation of Delhi from Ward No.13 Hauz Khan constituency. Elections were to be held on 23.02.97, but on 21.02.97 one of news items in the daily newspaper "The Times of India" published on 21.02.97 was under the title "233 aspirance for criminal record".
As regards the complainant, para - 4 of the news item reads as under :
"That since it become as known fact that the complainant had created an edge over his opposite candidates, at that juncture for the elections which were to be held on 23.02.1997, the accused persons published a new item in the daily newspapers known as Times Of India on 21.02.1997 at page 3 col.1 under the heading "223 aspirants for criminal record" by a staff Reporter. So far as the complainant is concerned, para 4 of the news item reads as under: "On them, are the cong., BJP, JD candidates from Hauz Khas 6 Virender Singh (Janta Dal) candidate is reportedly involved in cases of murder, dacoity and robbery. The Con. Candidate, Ashok Jain, is involved in a case of murder, attempt to murder and criminal intimidation."
Complainant has alleged that the aforesaid item is defamatory in nature, totally false and published with sole intention to defame him, tarnish his image knowing well and also to minimize the chance of winning his elections going to be held on 27.02.97.
11. In support of his case, complainant himself stepped into witness box as PW1 and tendered into evidence as affidavit Ex.C1. In his affidavit Ex.C1, he reiterated the allegations put forth in the complaint. He also examined CW2 Sh. Vijender Rajput.
PW1 The complainant testified that he enjoyed good reputation and had clean record; that he was loved by all the residents of the constituency; as to the overwhelming support by the public at large; and also about publication of news item in the issue of The Times of India of 21.02.97 when the elections were going to be held on 23.02.97.
He further testified that the news item was defamatory in nature, totally false and published with intent to defame him, tarnish his image and to minimize the chance of winning his election. He further testified that publication of news items was not a shock only to him but also supporters as the allegation levelled in the news items 7 was false, standless and defamatory. He further testified that his friends started questioning him and he was taken aback by the questioning, the reason being that with the publication of this news items, the entire hardwork he had put in the last 20 days was undone. Then, he narrated as to how publication ruined his political career. In his cross examination PW1 stated that he would not have lost the elections in the year 1997. He admitted that in the year 2003, he was Mayor of Delhi, when the assembly elections were held. According to the complainant, he was not considered by the party for the assembly elections in the year 2003 because he was made Mayor of Delhi.
PW2 PW2 was Joint Secretary of South District Congress Committee and actively involved in the election of the complainant, the candidate of Congress party. As regards reputation of the complainant, PW2 stated that he is known for his honesty, softness, openness, truthfulness and further that he commands great respect in public. He further stated complainant had no criminal record. Further, according to this witness, after publication of news items Ex.CW1/1 from point A to B in newspaper of 21.02.97, people started reacting adversely. He explained that wherever they used to go to ask for votes the voter who were earlier welcoming them, started closing 8 their doors and refused to talk to them. People started confronting them with the publication despite the fact the news was false. The witness also explained that prior to publication of news item they were getting a very good response from the electorate and to his estimate the complainant could have won election. According to the witness, only because of the publication of the news item, the complainant lost the election.
In his cross examination, PW2 displayed ignorance if many persons with criminal records were given tickets to fight elections. He further displayed ignorance as various congress government of State level and Central level had given tickets to MLAs and MPs who were having criminal record and many a times they had taken support from MLAs and MPs to run their government.
12. Section 499 of IPC defines Defamation as under: "Defamation - Whoever, by words either spoken or intended to be read, 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 - xxxxx Explanation 2 - xxxxx Explanation 3 - xxxxx 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 9 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." Sec.3 of the Act provides as under : "3. Particulars to be printed on books and papers - Every book or paper printed within India shall have printed legibly on it the name of the printer and the place of printing, and (if the book or paper be published) the name of the publisher, and the place of publication.
Sec.5(1) of the Act provides as under : "Without prejudice to the provisions of Section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication."
Sec.7 of the Act reads as under : "Officer 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 maybe 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 Section 8A of the Act provides as under:
"If any person, whose name has appeared as editor on a copy of a newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Subdivisional Magistrate and make a declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate after making such inquiry or causing such inquiry to be made as he may consider necessary is satisfied that such declaration is true, he shall certify accordingly, and on that certificate being given the provisions of Section 7 shall not apply to that person in respect of that issue of the news paper."
In K.M. Mathew Vs. State of Kerala & Anr. (1992) 1 SC Cases 217, there was no averment against the Chief Editor except the motive attributed to him. Even the motive alleged was general and vague. The complainant seemed to rely upon the presumption under section 7 of the Press and Registration of Books Act, 1867 ('the Act').
Hon'ble Apex Court observed that Section 7 of the Act has no applicability for a person who is simply named as 'Chief Editor'. The presumption under Section 7 is only against the person whose name is printed as 'Editor' as required under Section 5(1). There is a mandatory (though rebuttable) presumption that the person whose name is printed as 'Editor' is the 'Editor' of every portion of that issue of the newspaper of which a copy is produced.
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Section 1(1) of the Act defines 'Editor' to mean 'the person who controls the section of the matter that is published in a newspaper. It is true that the complainant did not produce on record the issue of newspaper dated 21.02.1997 and got proved Ex CW1/1 i.e. copy of the news item published in the said newspaper. Neither at the time of recording of evidence nor in the course of arguments, any objection was raised to the admissibility of this document which came to be exhibited as Ex CW1/1. Therefore, reliance can safely be placed on this document.
It is also true that for want of the issue/copy of newspaper dated 21.02.1997, it is not clear as to whose name was printed on it as that of the Editor and for want of copy of the newspaper, no presumption under Section 7 of the Act of 1867 can be drawn.
In K.M. Mathew Vs. K.A. Abraham & Ors (2002) 6 SCC 670, Hon'ble Apex Court has held that, somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper. Hon'ble Court has observed that the provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Hon'ble Court 12 further observed that though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper.
Herein, in para no. 7 of the complaint, complainant specifically alleged that the newspaper was published by accused no. 1company owner; that accused no. 2 was the printer and publisher of the newspaper whereas accused no. 3appellant herein was the Resident Editor of the newspaper and that all of them were directly connected with the defamatory news published in the newspaper. Even in his affidavit Ex C1, the complainant testified about these averments. Ex CW1/B and Ex CW1/C are notices dated 21.02.1997 and 05.07.1997. Whereas the former was sent by the complainant to the appellant and two others i.e. the company and Sh. Ramesh Chander (Since deceased), the later one was sent by the complainant to the appellant, Sh. Ramesh Chander (since deceased) and the staff 13 reporter.
The only joint reply to both the notices by Mr. Gopal Jain, Advocate, on behalf of the company, printers and publishers, Sh. Ramesh Chander and Sh. Raminder Singh, Resident Editor reads as under: "That I have received your notices dated 21.02.1997 and 05.07.1997 addressed to my client.
That my client has instructed me to state that the contents of the articles tittled "233 aspirants have criminal records" which appeared in the issue of the Times of India dated 21.02.1997 is based upon information furnished by the Police to my clients.
My client has instructed me to state that on the basis of information given to them, my client has reason to believe that at least 5 cases are pending against your client Sh. Ashok Kumar Jain, the details of which are set out as under:
My client has also instructed me to state that your client has been acquitted in 3 cases the details of which are as under:
My client therefore states that the allegations made by your client are false, baseless and are motivated and not sustainable under Section 500 of the India Penal Code in view of the fact that the contents of the article are based on true and correct facts and upon information furnished by the investigating agency, the Police herein. In view of the fact that the aforementioned cases are registered and are pending against your client, the article dated 21.02.1997 is accurate and is justified by hard facts in support.
My client has further instructed me to state that the said article is based on factual information and consequently cannot tarnish the image/reputation, if any, of your client as alleged and that the same has no connection to the campaign conducted by our client.
My client therefore states that as sought by you, my client has furnished details of information obtained by my client which are based upon the records maintained by Delhi Police.
My client has therefore instructed me to state that on the basis 14 of the aforesaid information, your notice is untenable as it is not based upon true and correct facts or on any legal foundation and consequently the same be withdrawn.
My client therefore states that in view of what is stated hereinabove, the question of any apology does not arise."
13. There is no statutory immunity for the Resident Editor, Managing Editor or Chief Editor against any prosecution for publication of any matter in the newspaper over which these persons exercise control, as observed in K.M. Mathew Vs. K.A. Abraham & Ors.
14. A perusal of above reply would reveal that the allegations levelled by the complainant in the notices were not disputed. Significantly, nowhere it was pleaded in the reply that sh. Raminder Singh, the present appellant was not the person who controlled the selection of the matter i.e. the Ex CW1/1. Rather as per instructions provided by the appellant and other respondents to their counsel were to the effect that the respondents, including the appellant herein believed that atleast five cases were pending against the complainant.
Surprisingly, no detail of any such case was furnished in para 3 & 4 of reply. The Article was defended to be accurate and justified by hard facts, based on factual information. The contents and facts of the Article were defended to be true and correct and upon information furnished by investigating agency i.e. the police.
Although no presumption can be drawn against Resident Editor, 15 as is available under Section 7 of the Act, but in view of above decision in K.M. Mathew Vs. K.A. Abraham & Ors, and the evidence led by the complainant on the specific allegation that the resident editor was directly connected with the defamatory news published in the newspaper and the appellant having not denied in his reply Ex CW1/D to the legal notice dated 21.02.1997 & 05.07.1997 Ex CW1/B and C, this Court finds that the complainant established before learned Trial Magistrate that it is the appellant who controlled selection of the news item published in the newspaper and as such, learned Trial Magistrate rightly held him responsible for this publication.
In view of the version put forth by the Appellant and coaccused, arrayed in the compliant, it was for the appellant to lead evidence that he had no control over selection of matter published in the newspaper. But he did not lead any evidence despite opportunity.
15. A perusal of Trial Court record would reveal that the appellant, while replying to incriminating material appearing in prosecution evidence against him and that too for the first time, came up with a different defence plea regarding responsibilities of Section Editors i.e. of different Sections and that the contents of the front page is responsibility of the Resident Editor in consultation with Executive 16 Editor. No such defence plea was put forth by him in reply to the legal notices. Had he put forth any such reply to the legal notices, complainant could take appropriate steps before filing of the criminal complaint to find out any other person, if responsible. It appears that when the appellant nowhere pleaded in rely to the legal notices that he had no control over selection of the matter published in a newspaper, and rather he defended the contents of the Articles to be based on true and correct facts that led the complainant to proceed to initiate action against him believing that it is the appellant, the resident editor who controlled the selection of the matter. In the given circumstances, the appellant could not come up with the plea that the concerned news item was vetted by chief Report /Metro Editor, who is Incharge of local pages. This Court does not find any merit in the contention raised by learned counsel for the appellant that an accused can raise alternative plea in his defence in the manner put forth herein.
Even otherwise, if the appellant, as a Resident Editor was not Incharge of the local pages, as alleged by him, he could easily examine the concerned editor responsible for controlling selection of the matter published. But in defence, he has not examined any such Editor. Even if the complainant did not place on record copy of declaration or 17 copy of newspaper, as provided under Section 5 or 7 of the Act, 1867, the appellant could also place the same on record to show that it was not he, but some other Editor responsible for controlling selection of the matter published. The fact is that the appellant did not bring on record any such document.
16. As to the impact of the defamatory news item, PW2 admitted in his cross examination that he was not shocked with the publication of the news items Ex.CW1/1. The mere fact that person known to the complainant did not change their opinion about the complainant in spite of the defamatory publication would not effect the guilt of the accused under Section 499. The accused can escape liability only if his case falls within any of the exceptions and not otherwise. In this regard, reference may be made to decision in Narayanan V. Gangadharan, 1982 KLT 378.
As noticed above, PW2 admitted in his cross examination that he was not shocked with the publication of the news items Ex.CW1/1 but it stands established that the same was published with intent to affect the result of elections.
At this stage, reference may be made to provisions of Section 171 G IPC which provides punishment for false statement in connection with an election.
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Section 171G IPC read as under': "False Statement in connection with an election Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine."
From the material available on record, it stands established that elections for Municipal Corporation of Delhi were going to be held on 23.02.1997. Present news item appeared in the newspaper dated 21.02.1997. In the news item, reference was made to the Municipal Polls going to be held on coming Sunday. Vide this news item, opinion of public was intended to be changed by pointing out that as many as 233 candidate including the complainant herein, against whom criminal case had been registered, were going to contest the poll.
In the given facts and circumstances, this court finds that the news item containing false fact regarding involvement of the complainant in criminal cases of murder, attempt to murder and criminal intimidation was got published with intent to affect the result of the election. The policy of the election law is that the public and political character of a candidate is open to scrutiny and can be severely criticised by his opponent but not so for his private or personal character is concerned.
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17. In view of the above discussion, when the appellant, neither in reply to the notice nor during trial, led any evidence regarding truthfulness of the statement/imputation attributed to the complainant, to show his involvement in any such criminal case, it can safely be said that the appellant published the statement which was false and which he knew and had reasons to believe to be false, in relation to the personal character of the candidate. Accordingly, this Court finds that appellant made himself liable for an offence under Section 171 G of IPC. Therefore, appellant is held guilty of the offence punishable under Section 171G IPC, but acquitted of the offence punishable under Section 500 IPC.
18. On the point of sentence, leniency has been prayed for. The Press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing which tends to harm the reputation of a person who is going to contest an election. Having regard to all the facts and circumstances of this case, the personal character of the complainant and the impact of publication of the news item containing false facts concerning the personal character of the complainant and that too soon before the elections for Municipal Corporation of Delhi were going to be held, this Court 20 deems it a fit case to sentence the appellant with fine of Rs.1 lac for the offence under Section 171G IPC. I order accordingly. The entire amount of fine of Rs.1 lac to be paid to the complainantrespondent by way of compensation.
As a result the appeal is disposed with modification in the manner indicated above.
19. Trial Court record be returned. Appeal file be consigned to Record Room.
Announced in Open Court
on 07.10.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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