Gauhati High Court
Sri Ghisalal Agarwala & 3 Ors vs The State Of Assam & 2 Ors on 28 March, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
Criminal Petition No.155 of 2017
1. Shri Ghisalal Agarwalla,
Managing Director of M/s G.L.Publication
Pvt. Ltd and Editor of Hindi daily news paper,
'Purvanchal Prahari' and Editor of North East
Times and Chief Editor of 'The Meghalaya
Guardian' G.S.Road Ulubair,Guwahti-7.
2. Smti Parbati Devi Agarwala,
W/o Shri Ghisalal Agarwala,
3. Shri Samir Agarwala,
S/o Shri Ghisalal Agarwala,
4. Smti Neha Agarwala,
W/o Shri Samir Agarwala,
Petitioner Nos, 2 to 4 are the
Directors of G.L.Publications Ltd.
G.S.Road, Ulubari,Guwahati.
.... Petitioners
-Versus-
1. State of Assam.
2. Royal Global School,
An Educational Institution running under the
"Gyan Sagar Foundation" alia "Royal", a Society
registered under the Societies Registration Act,
1860 having its registered office at 1st Floor,
Centre Point, G.S.Road, Ulubari, Guwahati-7,
Represented by its President, Sri Ashok Kumar
Pansari.
2
3. Sri Ashok Pansari,
Son of late Basudeo Pansari, R/o 4th Floor,
Royal Residency, Block-A, Sikaria Compound,
G.S.Road, Guwahati-5, District-Kamrup(M),
Assam.
............ R espondents
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the Petitioner : Mr. D. Chakraborty,Advocate
Mr. B. Sharma, Advocate,
Mr. H.Das, Mr. S. Hazarika
& Mr. D. Nath, Advocates
For the respondents : Mr. T.Mishra, Addl. P.P.,Assam.
Mr. P K Roychoudhury,Advocate Date of hearing : 3.3.2017 Date of Judgment : 28.03.2017 JUDGMENT & ORDER (CAV) Heard Mr.D Chakraborty, learned counsel for the petitioners, Mr. T.Mishra, learned Addl. P.P. and Mr. P.K.Roychoudhury, learned counsel appearing for respondent nos. 2 to 4.
2. The present application has been filed by the petitioners U/S 482 CrPC seeking quashing of proceedings as against the them pertaining to the CR Case No.2521C/15 pending before the learned SDJM, Sadar-II, (M), Kamrup, Guwahati.
3. The material facts which have laid to making the present petition may be set out as follows:
3The Respondent No.2 is an Educational Institution running under the Gyan Sagar Foundation @ Royal Global School, a society registered under the Societies Registration Act, 1868 and the Respondent No.3 is the President of the said society. The Respondent Nos. 2 and 3 as complainants had filed a complaint for prosecution of the present accused petitioners 1 to 4 portraying them to be the Directors of G. L. Publications and petitioner no.1 has also been projected as Editor to the Newspaper, Purbanchal Prahari and six other persons U/S 500/501 IPC on the allegation of publication of certain defamatory news item in the newspaper Purbanchal Prahari and Amar Asom relating to the inspection made by the School Inspection Committee. Accordingly, the learned Magistrate after examining the complaints issued process against the accused for commission of offence punishable U/S 500 IPC.
4. The petitioners have stated that the Petitioner No.1 is the Managing Director and Petitioner Nos. 2 to 4 are the Directors of publishing House of M/s G.L. Publication of Pvt. Limited who were not were responsible for the publication of alleged defamatory statements in the newspaper Purvanchal Prahari and Amar Asom published from the aforesaid publishing house. The petitioners are seeking quashing of the complaint on account of the fact that they cannot be fastened with any communal liability, much less criminal liability for any alleged defamatory publication in the concerned newspaper because of the statutory bar prevailing under the Press & Registration of Books Act, 1867 . As per Section 7 of the aforesaid Act, presumption as regards the liability is against the Editor whose name is printed in the newspaper. The act does not recognise any other legal entity for raising the presumption.
5. Perused the content of the petition and the impugned order passed by the learned trial Court.
6. Heard learned counsel for both the parties.
7. During the course of hearing, the learned counsel for the petitioners has contended that in this case the petitioners have been arrayed in the capacity of 4 Directors of G.L. Publications Ltd. The Directors of a Company owing a newspaper is neither the editor nor the printer nor the publisher of the newspaper, so no presumption can be drawn against the Director, even though he is by reason of the office held by him, in charge of and responsible to, the company for the conduct of its business.
8. It was next contended that in view of the provision of section 7 of the Press Registration of Books Act, 1867 presumption can be drawn only against a person whose name is printed as "Editor" in the newspaper of which a copy is produced. But the learned court below committed grave error in taking cognizance against the petitioners under Section 501 IPC which is not tenable in law.
9. In support of his contention learned counsel for the petitioners has cited the decision of Hon'ble Supreme Court, reported in (2015) 4 SCC 598 Indrajit Lankesh vs K.T.Dhanu Kumar; (1992) 1 SCC 217 K M Mathew vs- State of Kerala and another.
10. Counsel for the Respondent Nos 2 and 3 has contended that such a contention after one year of filing of complaint is not tenable and they have published the facts. Relying upon the decision of S. Nihal Singh & ors -vs- Arjan Das, reported in 1983 Crl. Law Journal 777 it has been contended that all accused petitioners are liable for defamation and their liability cannot be denied at this stage but can be challenged only in course of trial.
11. In the aforesaid decision the Court has decided that the plea as to getting exception as to whether petitioner acted in good faith or for public good can only be decided after such plea is recorded. But in the given case deliberation of the petitioner is not as regards availing exception but about the legal proposition as to the liability in terms of Section 7 of the Press Registration of Books Act, 1867.
11. In this case the petitioners are arrayed as the Director of the G.L.Publication Pvt. Ltd and the Petitioner No.1 G. L. Agarwala is arrayed as 5 Editor of the daily newspaper Purvanchal Prahari also where in its issue dated 24.4.2015, 29.5.2015, 06.06.2015, 21.6.2015, 4.7.2015 and 6.7.2015 published the alleged defamatory new items were published.
12. In the petition the petitioner no.1 described himself as the Managing Director of M/s G L Publication Pvt. Ltd as well as the Editor of the Newspaper Purvanchal Prahari and other news papers have stated all other petitioners are the Directors of the aforesaid publication house. In course of his argument learned counsel for the petitioner fairly submitted that the name of the petitioner no.1 may be deleted from the case, he being the editor of the newspaper.
13. Let us examine the provision of Section 7 in the light of decision of the Hon'ble Apex Court.
14. In K.N. Mathew -vs- State of Kerala (supra) it has been held that Section 7 (1) of the Press Registration of Books Act, 1867 raised the presumption is only in respect of the person whose name is printed as editor in the newspaper. The act does not recognise any other legal entity for raising the presumption. Even if the name of Chief Editor is printed in the newspaper there is no presumption against him U/S 7 of the Act. In paragraph 10 of the judgment it has been held as below:
" It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the 6 High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside."
15. In the case of Shobana Bhartia and ors -vs- NCT of Delhi and another, reported in 2008 (1) JCC 327, the aforesaid matter has been dealt with elaborately in following manner.
" 55.In view of provisions of Press and Registration Act, 1867, particularly Section 7 unless the contrary is proved, the persons declared as printer, publisher and editor of the newspaper are presumed to be responsible for the contents of the newspaper.
56. Whether any person other than the Printer, Publisher and Editor can be prosecuted for a defamatory article?
57. In context of afore-noted question, it is relevant to note the following judicial pronouncements.
(i) State of Maharashtra v. R.B. Chowdhari :- The public prosecutor filed a complaint under Section 500 IPC against four persons who were members of the Editorial Board of a Marathi weekly named 'Maharashtra'. One of the accused, Sudhakar Gopal Madane, had filed the declaration in the prescribed form under the Act describing himself as the editor, printer and publisher of the newspaper. The particular copy of the Maharashtra in which the alleged defamatory article appeared bore the name of one Madane as the printer, publisher and editor of the newspaper. It also showed on the front page that the Editorial Board consisted of Madane and three other accused. The question arose whether the members of Editorial Board could be prosecuted for defamatory article. Adverting to Section 7, the Supreme Court held that:
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 7 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.
(ii) T.K.S. Muthukoya v. Haji C.H. Mohammad Koya :- Question before Supreme Court was whether the Chief Editor of a newspaper can be prosecuted for publication of a defamatory article. In para 34 of the decision, Supreme Court observed as under:
34. From the facts established above, it is manifest that the petitioner has miserably failed to prove either that the appellant was the editor of the paper or that he was performing the functions, duties or shouldering the responsibilities of the editor.
It is obvious that a presumption under Section 7 of the Press Act could be drawn only if the person concerned was an editor within the meaning of Section 1 of the Press Act. Where however a person does not fulfill the conditions of Section 1 of the Press Act and does not perform the functions of an editor whatever may be his description or designation, the provisions of the Press Act would have no application....
(iii) K.M. Mathew v. State of Kerela and Anr. 1992 CriLJ 3779:-
In relation to prosecution of Chief Editor of a newspaper for publication of a defamatory news article, Supreme Court observed as under:
9. In the instant case there is no averment against the Chief Editor except the motive attributed to him. Even the motive alleged is general and vague. The complainant seems to rely upon the presumption under Section 7 of the Press and Registration of Books Act, 1867 ('the Act'). But 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. Section 1(1) of the Act defines 'Editor' to mean 'the person who controls the selection of the matter that is published in a newspaper'. Section 7 raises the presumption in respect of a person who is named as the editor and printed as such on every copy of the newspaper. The Act does not recognise any other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him under Section 7 of the Act. See State of Maharashtra 8 v. R.B. Chowdhari ; D.P. Mishra v. Kamal Narain Sharma and Ors. AIR 1970 SC 856; Narasingh Charan Mohanty v. Surendra Mohanty ; Haji C.H. Mohammad Koya v. T.K.S.M.A. Muthukoya .
10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside.
(iv) Sardar Nihal Singh v. Arjan Das 1983 CrLJ 777:- A learned Single Judge of this Court was considering whether the Chairman and Executive Editor of a newspaper could be prosecuted for publication of a defamatory article. With reference to Chairman, it was observed as under:
Needless to say that as Chairman of the Company Shri Goenka can be held liable for the publication of the offending news items only if it is shown that he was somehow concerned with the publication of the defamatory news items. It is highly doubtful that he can be asked to answer the charge of defamation merely because he happened to be the Chairman of the Company owning the newspaper without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company. Intention on the part of the accused to harm the reputation or the knowledge or reasonable belief that an imputation will harm the reputation of the persons concerned is an essential ingredient of offence under Section 400, IPC but such evidence is totally missing in the instant case. Under the circumstances the impugned order as regards Shri Goenka cannot be sustained on this short ground.
After referring to Section 3, 4, 5, 6 and 7 of the Press and Registration of Books Act, 1867, the learned Judge added:
However, it is difficult to draw such a presumption in the case of other petitioners viz., Arun Shorie, petitioner No. 2 and A. P. Dhar petitioner No. 4. Their names do not find place in the declaration printed on the newspaper itself and there is no iota of evidence to show that they are in any manner concerned with the collection, control or selection of the matter printed in the 9 newspaper. Their designations as Executive Editor/Editor of the Express News Service will not per se warrant an inference that they are in any way responsible for the selection of the material. An authority for this view may be found in the State of Maharashtra v. R.B. Chowdhari .
(v) Sardar Bhagat Singh Akali v. Lachman Singh AIR 1968 SC 269:- Calcutta High Court was considering the extent of the liability of the owner for defamatory statements published in the paper owned by him. In para 5 of the decision, it was observed as under:
The owner in order to be liable under Section 499 of the Code has to have direct responsibility for the publication of the defamatory statement and he must also have the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the person concerned. The owner of a journal has thus no responsibility under the section. The editor of the paper, even though he might not be directly responsible for a defamatory statement published in his paper attract the responsibility by virtue of Section 7 of the Press and Registration of Books Act by virtue of his registration as editor under the Act which registration is sufficient evidence that he was also the printer or publisher of the paper concerned. The printer and publisher by virtue of their duties as such cannot of course avoid, the legal liability for defamation. The owner's liability will be attracted provided it can be shown that he was responsible for the publication with the necessary interest, knowledge or reasonable belief in the matter.
58. From the afore-noted judicial pronouncements, legal position which emerges is as follows:
(i) Besides persons declared as editor, printer and publisher of a newspaper, only such person could be prosecuted for an action of defamation against whom specific and clear allegations has been made in the complaint that either he was responsible for selection of the defamatory matter or had personal knowledge about the contents of the defamatory matter. In addition, it must also be averred in the complaint that such person had the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the complainant.
(ii) The Chairman or the Managing Director of the company owning a newspaper is neither the editor, nor the printer nor the publisher and therefore no presumption could be drawn against holder of these offices even though they are, by reason of the offices held by them, in charge of, and responsible to, the company for the conduct of its business.10
59. Vis-a-vis petitioner Nos. 1 and 2 in Crl.M.C.No.35/2005, petitioner in Crl.M.C.No.350/2005 and petitioner No. 1 in Crl.M.C.No.3898-99/2005, the complaints filed against them does not contain any such averments. General and vague has been made against these petitioners.
60. It is relevant to note following observations of the Supreme Court in the decision reported as S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. :
...The normal rule in the cases involving criminal liability is against vicarious liability, that is, no one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in statutes extending liability to others. Section 141 of the Act is an instance of specific provision which in case an offence under Section 138 is committed by a Company, extends criminal liability for dishonour of cheque to officers of the Company. Section 141 contains conditions which have to be satisfied before the liability can be extended to officers of a company. Since the provision creates criminal liability, the conditions have to be strictly complied with. The conditions are intended to ensure that a person who is sought to be made vicariously liable for an offence of which the principal accused is the Company, had a role to play in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable. In other words, persons who had nothing to do with the matter need not be roped in....
61. Even otherwise, under the Indian Penal Code, no person can be prosecuted and punished for an offence committed by other person except in following 4 situations:
(i) When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.(Section 34, IPC)
(ii) When a person abets commission of an offence, he who abets is liable for the offence committed in pursuance of abetment.
(Section 107, IPC)
(iii) When an offence is committed in pursuance of a criminal conspiracy, all conspirators are liable for the offence committed (Section 120B, IPC)
(iv) When an offence is committed by a member of an unlawful assembly in furtherance of common object of assembly, all persons who were members of such assembly at the time of the 11 commission of the offence are liable for the offence committed. (Section 149, IPC)
62. In the instant case, there is no averment that said news item was written and published at the instance of and in furtherance of common intention of all the petitioners. The averments in the complaints also do not make a case of abetment or conspiracy.
16. In the recent case in 2015 4 SCC 598, Indrajit Lankesh -vs- K.T.Dhanu Kumar also endorses the aforesaid view. In Alok Mathur -vs- State of NCT Delhi decided on 9th March, 2016 in Criminal M.C.1320/2013 and other connected series. Hon'ble Delhi High Court while examining the provisions of quash proceeding as against summons issued by the trial Court in a complaint case for defamation U/S 499/500/501/502/34 IPC has referred and relied upon the decision of Shubona Bhartia (supra) and K.M. Mathew (supra) and Nihal Singh (supra), it has been held as follows:
8. Hence, it is settled legal proposition that in the absence of specific averments in the complaint and evidence to support those averments, nobody except the Printer, publisher and Editor of the newspaper can be presumed to be responsible for the contents of the newspaper and cannot be prosecuted for the offence of defamation. From the perusal of the complaint , it is noticed that the complainant has relied on the fact of refusal of providing discounts by the management to support the allegation that the petitioners were involved in the day to day management of the publication and were responsible for taking the decisions in the said publications. In my view, this fact alone is not sufficient to support the allegations made by the complainant which are prima facie vague and based on presumptions. The averments in the complaint also do not make a case of abetment or conspiracy.
9. There is nothing in the complaint to substantiate the allegations of the complainant that the petitioners were responsible for the publication of the said article in the newspaper or had knowledge or consented to the publication of objectionable article in the newspaper. A Magistrate before whom a complaint is presented has to satisfy himself that it contains the necessary averments. The complaint would have to bring on record material to justify the Court taking cognizance of the offence and summoning the accused persons.
Shedding light on the criticality of summoning a person in a criminal case, the Apex Court in Pepsi Foods Limited v. Special Judicial Magistrate, (1998) 5 SCC 749 has held that:-
12"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
7. This Court thereafter vide order dated 18.10.2012 modified/ clarified the judgment dated 20.03.2012 to the extent that instead of words 'there is no doubt regarding the fact that the article was defamatory in nature', it was to be read as 'There is no need to go into the controversy as to whether the article is or not defamatory in nature, but the question before this Court is that whether any person other than the Printer, Publisher and Editor can be prosecuted for a defamatory article or not'. "
17. In the light of the above legal proposition set forth by the Hon'ble Apex Court followed by other authorities it is a settled position of law that except the Editor, Printer and Publisher of a newspaper no other person can be fastened with the criminal liability unless specific averment/allegation is made out in the complaint petition. Now in the given case, a bare perusal of the complaint petition it reflects that petitioner nos.2 to 4 are arrayed as Directors of M/s G.L.Pubolication Pvt. Ltd. They are neither the editor nor the publisher or printer of the newspaper Purvanchal Prahari or Amar Asom. But the petitioner no.1 though is the Managing Director of said publishing house M/s G L Publications Pvt. Ltd., he is the Editor of Purvanchal Prahari, which is one of the newspaper where the alleged defamatory news were published. As a editor of Purvanchal Prahari, the petitioner no.1 is responsible for the selection of the materials for publication in the said newspaper. There is no any positive averment in the complaint about the knowledge of the other petitioners about the publication of objectionable matters nor there do anything to reflect as 13 regard their participation in the actual management and the affairs regarding such publication. Their designations as Directors of the newspaper will not per- se enough to draw an inference that they were responsible for selection of the news items/ materials, as has been indicated in the aforesaid judicial pronouncements. Save and except some general vague allegations, the complaint petition is totally silent as regards the state of affairs discharged by the petitioner nos.2 to 4 about the publication of the news items. That apart, there is no averment in the complaint that the said news item was published at the instance and in furtherance of common intention of all the petitioners nor it speaks about a case of abetment or conspiracy so as to constitute a criminal liability to make the petitioner nos.2 to 4 vicariously liable for the offence wherein the petitioner no.1 is the principal accused.
18. The inherent power under Section 482 CrPC envisages three circumstances under which it can be exercised- (i) to give effect to an order under the Code (ii) to prevent abuse of process of Court and (iii) otherwise to secure ends of justice. While exercising powers under the Sections the Court does not functions as a Court of appeal or revision but such jurisdiction is invoked to do the substantial justice to the parties. The power under the provisions if exercised judiciously and consciously it can take care of almost all the situations where the interference of the High Court become necessary on account of delay in proceeding, or for any other reason amounting to oppression, harassment in any trial, enquiry or proceedings and can exercise its jurisdiction terminating criminal proceedings if the case of abuse of process of law is made out. It is also settled law where the allegation set out in the complaint or charge do not constitute an offence, the High Court can quash the order of taking cognizance of an offence. Provision under Section 482 CrPC has a different parameter and is a provision independent of Section 397(2) CrPC it regulates the inherent power of the Court to pass necessary order to prevent the abuse of the process of the Court.14
19. In view of the discussions and findings above, it can be held that except the petitioner no.1, the other petitioner nos.2 to 4 had no concern with the publication of the alleged defamatory news. In the legal parlance and in the interest of justice it would be fair to exonerate the petitioner nos.2 to 4 from facing the criminal trial any further. The continuance of the criminal proceeding as against the petitioner nos. 2 to 4 will be nothing but abuse of process of Court and also against the interest of justice.
20. In the result the criminal petition is partly allowed. The criminal proceeding of CR Case No.2521C/2015 pending in the Court of learned SDJM (M), Sadar-II, Kamrup, Guwahati as against petitioner nos. 2 to 4 stands quashed and set aside.
21. Send a copy of this order to the court below and LCR if any be returned.
JUDGE Nandi