Gujarat High Court
Sudhir Agarwal Publisher Of Daily Divya ... vs State Of Gujarat on 5 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/2531/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2531 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SUDHIR AGARWAL PUBLISHER OF DAILY DIVYA BHASKAR
Versus
STATE OF GUJARAT
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Appearance:
MR AS VAKIL(962) for the PETITIONER(s) No. 1
MR HARDIK A DAVE(3764) for the RESPONDENT(s) No. 2
PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/04/2018
ORAL JUDGMENT
1. By this application under section 482 of the Cr.P.C., 1973, the applicant-original accused No.1 seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of the Criminal Case No.40401 of 2006 in the Page 1 of 30 R/CR.MA/2531/2012 JUDGMENT court of the learned Judicial Magistrate, First Class, Surat arising from a private complaint lodged by the respondent No.2 herein for the offence punishable under sections 500, 501, 502 read with 34 and 114 of the IPC.
2. It appears from the materials on record that the applicant is the owner, publisher and printer of a daily newspaper, namely, Divya Bhashkar, printed and published in Gujarat from Surat. In terms of section 5 of the Press & Registration of Books Act, 1867 (for short "the Act 1867), a declaration dated 18th May, 2006 was made before the Sub-Divisional Magistrate, Choryasi Prant, Surat. According to such declaration, the owner, publisher and printer of the daily newspaper Divya Bhashkar, printed and published in Gujarat from Surat, is the applicant herein and the name of the editor is one Aakar Patel.
3. Let me straightway go to the complaint lodged by the respondent No.2. The complaint is extracted hereunder;
"It is the humble request of the complainant that -
1. The complainant is presently residing at the address mentioned hereinabove. The complainant is presently living a retired life, but at the same time, he is also doing social work according to his might.
2. The accused no.1 publishes everyday "Divya Bhaskar", a daily, from his aforementioned address and he is the Publisher, Printer and Owner of the said daily. This daily is published from Surat and also from Ahmedabad and other places and it has a wide circulation across Gujarat and it also has a readership as well as this daily also has its circulation in Maharashtra and other States and the people of Gujarati community residing thereat are also the consumers of the said daily.Page 2 of 30
R/CR.MA/2531/2012 JUDGMENT The accused no.2 is an Executive Editor in the said "daily" and all the news has his approval and consent.
Whereas the accused no.3 is working as a Reporter in the said "daily".
2. The complainant was born in the year 1923. The complainant belongs to Meghval community, which is a backward community. In those days, the complainant had completed his education with great difficulties and in his school, he was very bright in studies and had also received Government scholarships and thereafter, in 1947, he joined his service in the Surat School Board as a primary teacher. The complainant also got started the night education, adults education in the year 1949. The complainant had offered extensive service for the development of his community and he is still offering the same even today. When the emergency was announced in India in 1968, he left his job and joined Janta Party of that time as an active member and he had came into contact with several big leaders of the Country and of the State. Thereafter the complainant became Chairman of the Town Primary Education Committee in Surat Municipality and brought many improvements using his position and had provided excellent services in the education world. The complainant had actively extended his services to the affected people during the flood calamity in the Tapi river at Surat in the year 1959 and during the disaster which was caused due to collapse of Machchhu Dam at Morbi.
The complainant had not only offered his services to the people of his community but had extended his services to the entire Gujarati community, in the proportion to what he was able to do and for the said purpose, he had also approached politicians and made successful efforts to obtain their contribution in such services. Thus, in recognition of the services rendered over the years by the complainant, a programme for making his special honour was also organized on 20.09.2003 at Modhvanik Samast Panch Wadi, Surat, which was presided over by the Member of Parliament of Surat and the then Central Rural Development Minister of India Shri Kashirambhai Rana and at that time, many well-known leaders had attended the programme and many big leaders have conveyed their greetings. Thus, the complainant was Page 3 of 30 R/CR.MA/2531/2012 JUDGMENT highly respected in his community and in the public at large and everyone respected him very much.
Children of the complainant are very well educated, and are currently holding good positions.
3. Despite the above fact, the accused persons herein had, without making any verification and with a malafide intention to cause defamation to the complainant and by misusing the license granted to them for running a daily press, published the following news items under the huge headline, on page 5 in the Divya Bhaskar daily edition of Surat on 21.05.2006, Sunday, which reads as under and reporter thereof is accused No.3 Nayan Shah:
"Act of the Principal and Observers of Telugu medium School"
"Stigma to the name of Principal and Teacher of Telugu School of Umarwada."
Below this big headline, the following news is published in addition. "One more Telugu Medium School is added to the scam of not providing free books, work books, science book as well as Uniform, which are being provided free of cost by the Government to the Minority Language Schools of Town Primary Education Committee. As per the information received from the reliable sources, Ramadevi Khimjibhai Parmar, Principal of Telugu Medium School of Umarwada School No.44, had, without distributing the books, work books, science books of the current academic year, stored the same in the empty boxes in the storeroom.
............................................................... Despite the report of the observers, the books, work books, science books were found from the storeroom of the School of Ramadevi Khimjibhai Parmar, Principal of Umarwada School No.44. The Principal had hidden all these literature in the Pavaali and empty boxes of the storeroom. "................................. ..................... Principal Ramadevi, who originally belonged to Surat, but studied at Hyderabad, is a daughter of Khimjibhai Parmar, an Ex-President of the Committee. Khimjibhai was a Chairman of the Committee from 16.05.77 to 27.06.81. Even though Ramadevi, who has a strong political influence, had not distributed books, work books Page 4 of 30 R/CR.MA/2531/2012 JUDGMENT and science books, in order to shield her, a report had been given that the books were distributed. It is being discussed in the education world that, whether any action will be taken against the one who has tampered with the future of the students who are deprived of the textbooks and other materials on account of the collusion with the observers and principals of the Committee or that the inquiry will be wound up as was done in the scams, which were revealed in past, by the Chairman Rajeshbhai Desai."
"Principal Ramadevi, who originally belonged to Surat, but studied at Hyderabad, is a daughter of Khimjibhai Parmar, an Ex-President of the Committee. Khimjibhai was a Chairman of the Committee from 16.05.77 to 27.06.81. Ramdevi, who has a heavy political influence, Books, is being discussed in the world, and finally, following was again printed in the big letters. "Students are deprived of books : Attempts made to shield the daughter of ex-Chairman."
Further, what is stated hereinabove has been published on page no.5 of the said daily and the original thereof is produced herewith and the same be treated as a part of this complaint.
4. The complainant was very much surprised upon reading the aforesaid news. The complainant does not have any daughter named either Ramadevi or Ratnadevi and no daughter of the complainant has either studied in Hyderabad or has taken any training. Further, no daughter of the complainant is a Principal in the Telugu Medium School of Umarwada School No.44.
5. The aforesaid news has left such a bad and distorted impression in the minds of the complainant's community, friends, relatives and ordinary people that his daughter is a scamster and operates a scandal of books and other items given to the students and because of this, many people are inquiring with respect to the same on phone and in person. Not only that, but it has created bad impression of the complainant and his family and this has caused severe disgrace and defamation of the complainant.
Therefore, the complainant had issued a notice by way of Page 5 of 30 R/CR.MA/2531/2012 JUDGMENT Regd. Post A.D. upon the accused persons seeking necessary explanation regarding the defamation of the complainant. However, as they have not accepted the said notice, it has returned back. The complainant will produce the same at the time of continuation of the proceedings.
Further, this news is self-defamatory.
The accused persons had, without making any necessary verification and in connivance of each other and with a criminal intention published the aforementioned news in their daily "Divya Bhaskar" and have sold the same to the public in general.
6. Thus, the aforesaid news has created a bad and distorted impression in the minds of the complainant's community, friends, relatives and ordinary people and this has caused severe defamation of the complainant and despite it was well within the knowledge of the accused persons that this news would cause severe defamation of the complainant, the abovementioned news were published and sold by the accused persons without making any verification and thereby have caused severe defamation of the complainant and hence, I am filing the present complaint against them under section 500, 501, 502 read with Section 34-144 of IPC. Therefore, the learned Court may be pleased to issue arrest warrant against the accused and after recording necessary evidence of the complainant, be further pleased to punish them strictly in accordance with the law.
My witnesses are as follows:
(1) Arjanbhai Bhayabhai Khabadiya Saiyadpura, Opposite Pumping Station, Beside Geeta Store, Navi Chawl, Surat (2) Pravinbhai Bhanjibhai Solanki, Chavda Nivas, Near Saiyadpura Bazar, Surat (3) Ashwin L. Sosa, Saiyadpura, Navi Chawl, Geeta Store, Surat (4) Babubhai Shethna, Nanavat, Surat (5) Lalchand Makwana, Rander Road, Surat (6) Mavjibhai Virjibhai Vadhel, Page 6 of 30 R/CR.MA/2531/2012 JUDGMENT Rander Road, Surat (7) Kishorbhai Hirabhai Dodiya, Rohidas Vashi Society, Opposite Saiyadpura Market, Surat Additional witnesses will be made available during the continuation of the case or will be called upon by issuing summons."
4. The court below took cognizance upon the complaint and issued process to the applicant herein and other two co- accused for the offences enumerated above.
5. Being dissatisfied with the order of issue of process, the applicant is here before this Court with a prayer that the complaint and the order of process be quashed.
6. Let me also look into the alleged defamatory article published in the newspaper which gave rise to the cause of action to the respondent No.2 to file a criminal complaint for the offence of defamation.
"Act of the Principal and Observers of Telugu medium School STIGMA TO THE NAME OF PRINCIPAL AND TEACHER OF TELUGU SCHOOL OF UMARWADA.
Nayan Shah - Surat One more Telugu Medium School is added to the scam of not providing free books, work books, science book as well as Uniform, which are being provided free of cost by the Government to the Minority Language Schools of Town Primary Education Committee. As per the information received from the reliable sources, Ramadevi Khimjibhai Parmar, Principal of Telugu Medium School of Umarwada School No.44, had, without distributing the books, work books, science books of the current academic year, stored the same in the empty boxes and pavali of the storeroom.Page 7 of 30
R/CR.MA/2531/2012 JUDGMENT Shankarbhai Patel, the Deputy Administrative officer, having received information about non-distribution of the textbooks given for the education of the students, he inspected the school and recovered textbooks, workbooks and science books.
After the Uniform Scam and Textbook Scam of Mamta Sahani, Principal of Odia School at Pandesara was exposed in past by this newspaper, the Education Commissioner, Gandhinagar, ordered the Committee to investigate as to whether uniform, textbooks, workbooks, science books were distributed amongst the students in all schools. On basis of the order of the Committee, the Administrative Officer and the then Chairman of the Committee Rajesh Desai had directed the observers to make investigation in every schools. The Observers of the Committee had filed their report that all schools had distributed all the materials including textbooks, workbooks, science books to the students. Despite the report of the observers, the textbooks, workbooks, science books were found from the storeroom of the School of Ramadevi Khimjibhai Parmar, Principal of Umarwada School No.44. The Principal had hidden all these literature in the Pavaali and empty boxes of the storeroom. 273 Boys and 274 Girls are studying in the Telugu Medium School. The Committee spends 50 thousand rupees for the preparation of textbooks in other minority languages. After getting translated the books from Gujarati to Telugu language with the help of subject expert available thereat, Telugu textbooks are being prepared and after making the floppy of the same thereat, the same is being brought here and thereafter the textbook is printed. The same is the situation of other languages. Earlier, the students of Telugu Medium School had to pursue their education by taking out Xerox of the textbooks of Telugu Medium.
Principal Ramadevi, who originally belonged to Surat, but studied at Hyderabad, is a daughter of Khimjibhai Parmar, an Ex-President of the Committee. Khimjibhai was a Chairman of the Committee from 16.05.77 to 27.06.81. Even though Ramadevi, who has a strong political influence, had not distributed books, work books and science books, in order to shield her, a report had been given that the books were distributed. It is being discussed in the education world that, whether any action Page 8 of 30 R/CR.MA/2531/2012 JUDGMENT will be taken against the one who has tampered with the future of the students who are deprived of the textbooks and other materials on account of the collusion with the observers and principals of the Committee or that the inquiry will be wound up as was done in the scams, which were revealed in past, by the Chairman Rajeshbhai Desai. Rupin Pachchigar on being asked about non- distribution of the textbooks, he stated that he could not say anything at present since he is new and therefore does not know anything about the incident. The statement can be made only after having discussion with the Administrative Officer.
Students are deprived of books : Attempts made to shield the daughter of ex-Chairman."
7. Mr. S.N. Soparkar, the learned senior counsel appearing with Mr. A.S. Vakil, the learned counsel for the applicant vehemently submitted that the applicant, being the publisher, printer and owner, cannot be held liable or responsible for the alleged defamatory article. It is submitted that the selection of any article to be printed in the newspaper is the job of the editor. The term "editor" as defined in section 1(1) of the Act, 1867 means a person who controls the selection of the matter that is published in a newspaper. Mr. Soparkar submitted that the fact that the name of the editor was separately mentioned in the declaration made under section 5 of the Act, 1867 and the name of the printer and publisher was also separately mentioned would demonstrate that the editor was the person who controlled the selection of the matter/news item/the alleged defamatory article published in the newspaper.
8. Mr. Soparkar submitted that the prosecution of the applicant for the alleged offence of defamation is nothing but gross abuse of the process of law. It is further submitted that, nowhere in the complaint, it has been alleged that although Page 9 of 30 R/CR.MA/2531/2012 JUDGMENT the applicant is the owner, printer and publisher, yet he had participated actively along with the editor for the purpose of publishing the alleged defamatory article. To put it in other words, there are no allegations in the complaint that the applicant, being the publisher, printer and owner, had the requisite knowledge that the editor of the newspaper is going to publish a defamatory article and the applicant, directly or indirectly, permitted the editor to do so. It is submitted that in the absence of any such specific allegations in this regard, no criminal liability can be fastened on the applicant.
9. Mr. Soparkar pointed out that in fact having realized that the Principal, namely, Ramadevi is not the daughter of the complainant, immediately a corrigendum was published in the newspaper with necessary clarification. The clarification published is extracted hereunder;
"PRINCIPAL RAMADEVI IS NOT THE DAUGHTER OF KHIMJIBHAI Surat: In the news published on 21st May in 'Divya Bhaskar' daily under the headlines Stigma to the name of Principal Teacher of Telugu School of Umarwada, Principal of School No.44 Ramadevi is exhibited as a daughter of Khimjibhai Parmar. Khimjibhai Parmar does not have any daughter named Ramadevi. During his tenure as Chairman of the Town Primary Education Committee, he has not recommendation for anybody. Khimjibhai Parmar has nothing to do with text-book scandal, he has said so."
10. In such circumstances, referred to above, the learned senior counsel prays that there being merit in this application, the same be allowed and the complaint and the order of process be quashed so far as the applicant herein is Page 10 of 30 R/CR.MA/2531/2012 JUDGMENT concerned.
11. On the other hand, this application has been vehemently opposed by Mr. A.M. Bhatasara, the learned counsel appearing for the respondent No.2-original complainant. The learned counsel appearing for the complainant would submit that more than a prima facie case could be said to have been made out to put the applicant herein on trial for the offence of defamation. The learned counsel would submit that all the necessary ingredients to constitute the offence of defamation are spelt out on plain reading of the complaint. It is submitted that by merely publishing a corrigendum clarifying that the Principal, namely, Ramadevi is not the daughter of the complainant would not save the situation for the applicant herein. It is submitted that the offence stood completed, the day, the defamatory article came to be published in the newspaper in question. In such circumstances, referred to above, the learned counsel appearing for the complainant prays that there being no merit in this application, the same be rejected.
12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the learned Magistrate committed any error in issuing process to the applicant herein for the offence of defamation.
13. Section 499 IPC defines the offence of defamation. It contains 10 exceptions and 4 explanations. The relevant portion reads;
Page 11 of 30R/CR.MA/2531/2012 JUDGMENT "Section 499. Defamation.-- Whoever, by words either spoken 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."
14. An analysis of the above reveals that to constitute an offence of defamation it requires a person to make some imputation concerning any other person;
(I) Such imputation must be made either (a) With intention, or (b) Knowledge, or (c) Having a reason to believe
that such an imputation will harm the reputation of the person against whom the imputation is made.
(ii) Imputation could be, by (a) Words, either spoken or written, or (b) By making signs, or (c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and publishing the same is:
If 'X' tells 'Y' that 'Y' is a criminal - 'X' makes an imputation. If 'X' tells 'Z' that 'Y' is a criminal - 'X' publishes the imputation.Page 12 of 30
R/CR.MA/2531/2012 JUDGMENT The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made.
15. Committing any act which constitutes defamation under Section 499 IPC is punishable offence under Section 500 IPC. Printing or engraving any defamatory material is altogether a different offence under Section 501 IPC. Offering for sale or selling any such printed or engraved defamatory material is yet another distinct offence under Section 502 IPC.
16. If the content of any news item carried in a newspaper is defamatory as defined under Section 499 IPC, the mere printing of such material "knowing or having good reason to believe that such matter is defamatory" itself constitutes a distinct offence under Section 501 IPC. The sale or offering for sale of such printed "substance containing defamatory matter"
"knowing that it contains such matter" is a distinct offence under Section 502 IPC.
17. Whether an accused (such as the respondent) against whom a complaint is registered under various Sections of the IPC (Sections 500, 501 & 502 IPC) could be convicted for any of those offences depends upon the evidence regarding the existence of the facts relevant to constitute those offences.
18. In the context of the facts of the present case, first of all, it must be established that the matter printed and offered for sale is defamatory within the meaning of the expression under Page 13 of 30 R/CR.MA/2531/2012 JUDGMENT Section 499 IPC. If so proved, the next step would be to examine the question whether the accused committed the acts which constitute the offence of which he is charged with the requisite intention or knowledge etc. to make his acts culpable.
19. Answer to the question depends upon the facts. If the respondent is the person who either made or published the defamatory imputation, he would be liable for punishment under Section 500 IPC. If he is the person who "printed" the matter within the meaning of the expression under Section 501 IPC. Similarly to constitute an offence under Section 502 IPC, it must be established that the respondent is not only the owner of the newspaper but also sold or offered the newspaper for sale.
20. Let me now look into the provisions of the Press & Registration of Books Act (25 of 1867).
21. The Preamble to the Press Act runs thus:-
"Whereas it is expedient to provide for the regulation of printing-presses and of newspapers, for the preservation of copies of every book and newspaper printed in India and for the registration of such books and newspaper, it is hereby enacted as follows":
22. It would thus appear that the object of the Press Act was to regulate printing presses and newspapers in order to preserve copies of newspapers and books. Moreover, 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 Page 14 of 30 R/CR.MA/2531/2012 JUDGMENT 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. My opinion in this regard is however re-inforced by the statement, object and reasons accompanying the Press Act which may be extracted thus:-
"Whereas it is expedient to repeal the Indian Press Act, 1910 and the newspapers (Incitements to offences) Act, 1908, and to make further provision in the Press and Registration of Books Act, 1867, for the liability of editors of newspapers in civil and criminal proceedings and to make certain amendments in that Act in order to facilitate the registration of printers and publishers; and to provide in the Sea Customs Act, 1878, the Code of Criminal Procedure, 1898, and the Indian Post office Act, 1898 for the seizure and disposal of certain documents; it is hereby enacted as follows :"
23. It was with this avowed object that the Press Act clearly defines 'Editor` who has a clear legal status under the Press Act. Section 1 (1) of the Press Act defines 'Editor' thus:
"Editor" means the person who controls the selection of the matter that is published in a newspaper".
24. Section 5 of the Press Act provides that no newspaper shall be published except in conformity with the rules hereinafter laid down. Section 5(1) runs thus:-
"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".
25. It would thus be clear that under section 5(1) of the Press Act the legal requirement is that every newspaper shall Page 15 of 30 R/CR.MA/2531/2012 JUDGMENT contain the name of the owner and the editor printed clearly, so that there is no confusion in the minds of the people on this account. Sub-section (2) of section 5 of the Press Act makes it incumbent on the printer and the publisher to appear before the authorities mentioned in that section and make a declaration.
26. Sub-rule (2) of rule 8 of the Rules made under the Press Act runs thus:
"Every copy of every newspaper shall have printed legibly on it the names of the printer, publisher, owner . and editor and the place of its printing and publication in the following form:
Printed by .. ..and published by .... on behalf of ..... . (name of owner) ..... and printed at .... (place of printing) ... and published at .. (place of publication...... Editor ........"
27. This rule enjoins that the name of the printer, publisher, owner and editor must be clearly indicated. The note to this rule is extracted thus:-
"Note: This form may be modified to suit the circumstances of each paper, for example, where The printer, publisher and owner are the same the imprint line can be Printed, published and owned by .. The editor's name, however, should be given separately in every case".
28. This requires that the editor's name however, should be given separately in every case. Rule 6 requires every publisher to submit an annual statement to the Press Registrar. It is not disputed in the present case that this statement was not made by the appellant but by P.W. 2 Aboobaker who was the editor, publisher and printer of Chandrika. The annual statement which has to be filed in form 2 contains one of the columns Page 16 of 30 R/CR.MA/2531/2012 JUDGMENT where the editor's name has to be shown. Section 7 of the Press Act runs thus:-
"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 he 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."
29. Section 8(A) of the Press Act provides that where any person's name has appeared as an editor in a paper although he was not an editor he shall within two weeks of his becoming aware that his name has been so published"
appear before the District, Presidency or Sub-Divisional Magistrate and make a declaration that his name has been incorrectly published and get a certificate from the Magistrate that the provisions of section 7 shall not apply to him.
30. In the case of State of Maharashtra v. Dr. R. B. Chowdhary & Ors. (1967) 3 SCR 708: AIR 1968 SC 110, the Supreme Court observed as follows:
"The term 'editor' is defined in the Act to mean person who controls the selection of the matter that is published in a newspaper. Where there is mentioned an editor as a person who is responsible for selection Page 17 of 30 R/CR.MA/2531/2012 JUDGMENT of the material section 7 raises 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 as 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. 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 cut because they had no concern with the publishing of the article in question".
31. This case, therefore, clearly holds that where a person is not shown in the paper to be its editor no such presumption under section 7 of the Press Act can be drawn but it must be held that he has no concern with the publishing of the article.
32. To the same effect is another decision of the Supreme Court in the case of D. P. Misra Kamal Naran Sharma & Ors., (1971) 3 SCR 257: (AIR 1971 SC 856). In this case which was also an election matter a newspaper called Mahakoshal was published from Raipur and one Shukla was registered as the printer, publisher and editor with the Press Registrar. The defence of Shukla was that he had appointed one Tarangi as the editor of Mahakoshal in June 1962 and was not present at the relevant time. The Supreme Court pointed out that the proceedings for naming a person who is found responsible for publication of an offending matter and for constituting a corrupt practice are in the nature of quasi-criminal proceedings. It Page 18 of 30 R/CR.MA/2531/2012 JUDGMENT follows therefore that being a corrupt practice it has to be proved beyond reasonable doubt and not by the measure of preponderance of probabilities. The Supreme Court observed in this connection as follows:
"Section 7 raises a presumption that a person whose name is printed in a copy of a newspaper is the editor of every portion of that issue. The presumption must be re butted by evidence .... The presumption under section 7 of the Press and Registration of Books Act undoubtedly arises, but in a charge under section 123(4) of the Representation of the People Act the presumption under section 7 of the Press and Registration of Books Act, 1867 would come with greater or less force, according to the circumstances to the aid of a person claiming that the editor was responsible for the publication and that the publication was to the knowledge of editor".
"Granting that there was close association between Mishra and Shukla and even granting that Mahakoshal was exclusively carrying on propaganda on behalf of Mishra, unless there is evidence to prove that Shukla had either authorised the publication of the offending matter, or had undertaken to be responsible for all the publications made in the Mahakoshal, no inference that the offending publications were made to the knowledge and with the, consent of Shukla may be raised".
"The statement filed by Shukla is not inconsistent with the case set up by him in this proceeding. Responsibility for publication was accepted by him but he had clearly stated (1) [1971] 3 S. C. R. 257 676 that the publication of news-items from the correspondents were attended to by the Sub-editors and That he generally laid down the policy of the newspaper and gave general directions. He admitted his responsibility because he personally had with knowledge published the article which constituted contempt of Court".
33. I may mention here that in this case Shukla in his Page 19 of 30 R/CR.MA/2531/2012 JUDGMENT statement has clearly stated that the publication of the news- items in the paper were attended to by Sub-editors and he generally laid down the policy of the newspaper and gave general directions. No such allegation or evidence is forthcoming in the instant case because it has neither been alleged nor proved that the appellant was in any way controlling selection of the matters published in the paper.
34. In the case of Harasingh Charan Mohanty v. Surendra Mohanty, (1974) 2 SCR 39; (AIR 1974 SC 47) the Supreme Court pointed out that consent or agency could not be inferred but had to be proved affirmatively like any other fact. In this connection the Supreme Court observed as follows :.-
"Consent or agency cannot be inferred from remote causes. Consent cannot be inferred from more close friend ship or other relationship or political affiliation. As pointed out in D. P. Mishra's case (supra) however close the relationship nection the Court observed as follows :.-
"Consent or agency cannot be inferred from remote causes. Consent cannot be inferred from more close friend ship or other relationship or political affiliation. As pointed out in D. P. Mishra's case (supra) however close the relationship unless there is evidence to prove that the person publishing or writing the editorial was authorised by the returned candidate or he had undertaken to be responsible for all the publications, no consent can be inferred".
35. It was further held in the said case that the presumption under section 7 of the Press Act is a rebuttable presumption and the so called editor can rebut the presumption by showing that he had nothing to do with the publication of the editorial or the news report. In our opinion, even if any presumption is Page 20 of 30 R/CR.MA/2531/2012 JUDGMENT sufficiently rebutted by him not only from the evidence adduced by the appellant but also by the evidence adduced by the petitioner. We shall presently deal with this facet of the matter, namely the factual aspect of this question. The Supreme Court further observed as follows:-
"When once it is established that neither the editorial (ext. 1) nor the news report (Ext. 2) were published by the respondent or by some one else with his consent or that the speech alleged to be made by Biju Patnaik even if it amounts to corrupt practice, was made without the consent of the respondent, and that Biju Patnaik was not his agent. It is unnecessary to consider the question whether the editorial and the news report as well as the speech of Biju Patnaik did in fact constitute corrupt practice under sub section (3) of section 123 of the Act".
36. In Haji C.H. Mohammed Koya vs. T.K.S.M.A Muthukoya, AIR 1979 SC 154, the Supreme Court held as under;
"35. 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 687 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 l of the Press Act. Where however a person does not fulfill the conditions of section 1 of the Press Act an(l 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. In these circumstances, therefore, the High Court had no legal justification to draw a presumption against the appellant under section 7 of the Press Act in holding that he was proved to be the editor of Chandrika and! therefore, must be deemed to be aware of the articles published in the said Page 21 of 30 R/CR.MA/2531/2012 JUDGMENT paper. Even if, for the sake of argument, it is assumed that the appellant was the editor it has been pointed out by this Court that the presumption to be drawn under section 7 of the Press Act is rebuttable and the evidence and the circumstances of this case discussed above show that this presumption has been sufficiently rebutted.
36. The next question that arises for consideration is that if the finding of the High Court on this point is rejected as it must be then can the petitioner be liable for the materials or speeches published in the paper Chandrika. The publication of the materials promoting hatred between two classes of citizens is undoubtedly a corrupt practice and` it is well settled by long course of decisions of this Court that such practices must be clearly alleged with all the necessary particulars and proved not by the standard of preponderance of probabilities but beyond reasonable doubt. We are fortified in our view by the decision of this Court in the case of Mohan Singh v. Bhanwar Lal & Ors.(1) where this Court observed as follows:-
"The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit, the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous."
To the same effect is a decision of this Court in the case of Magraj Patodia v. R. K. Birla & Ors. [1971] 2 S.C.R. 118:
(AIR 1971 SC 1295) where this Court observed as follows "But the fact remains that burden of proving the commission of the corrupt practice pleaded is on the petitioner and he has to discharge that burden satisfactorily. In doing so he cannot depend on preponderance of probabilities. Courts do not set at naught the verdict of the electorate except on good grounds".
37. ln the case of D. Venkata Reddy v. R. Sultan & Page 22 of 30 R/CR.MA/2531/2012 JUDGMENT Ors. (1976) 3 SCR 445: (AIR 1976 SC 1599) this Court after reviewing most of the previous decisions of this Court observed as follows:-
"In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. lt is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election. In our country election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results t cannot be lightly brushed aside in election disputes. ........ Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practice being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt".
In the case of Ramanbhai Nagjibhai Patel v. Jaswantsingh Udesingh Dabhi & ors. A. I. R. 1968 SC 1162. this Court observed as follows:-
"We may state that the charge of bribery is in the nature of a criminal charge and has got to be proved beyond doubt. The standard of proof required is that of proving a criminal or a quasi-criminal charge. A clear- cut evidence, wholly ! credible and reliable is required to prove the charge beyond doubt. Evidence merely probabilising and endeavouring to prove the fact on the basis of preponderance of probability is not sufficient to establish such a charge".
38. In the light of these decisions we shall now proceed to decide the next question. In view of our finding that the appellant has not been proved to be the editor of the paper Chandrika Ext. P. 2 to P. 11 excepting Ext. P. 5 will have to be totally excluded from consideration because Page 23 of 30 R/CR.MA/2531/2012 JUDGMENT those are speeches and articles of various persons published in Chandrika and the constructive knowledge of this has been ascribed to the appellant by virtue of the allegation that he was the editor of the paper. As however this has not been proved it was incumbent on the petitioner to prove knowledge of these articles or speeches like any other fact. The admitted position appears to be that neither the writer of the article nor the speaker who delivered the speech nor the reporter nor even the manuscripts of the speeches have been produced before the Court. In these circumstances, therefore, all these articles and speeches are inconsequential until they are shown to have been made with the knowledge and consent of the appellant. Even in the pleading the petitioner has not averred that the appellant had any independent knowledge of these things or that these speeches or articles were written with his express or implied consent. The petitioner has based his case entirely on the footing that as the appellant was the editor he must be deemed to be aware of these articles and speeches and if the speeches contained offending matters and promoted hatred and ill will between two classes of citizens the appellant must be deemed to have committed the corrupt practice under section l 23 (3A) of the Act. As the entire edifice built by the petitioner for the admissibility of Ex. P. 2 to P. ll except P. 5 collapses, the allegation of the petitioner on this score is clearly disproved. Moreover, we are fortified in our view by the decision of this Court in the case of Samant N. Balakrishna etc. v. George Fernandez Ors. etc. (1) where this Court observed as follows:-
"The best proof would have been his own speech or some propaganda material such as leaflets or pamphlets etc but none was produced .. A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well- known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove them selves although they may be taken into account with other evidence if the other evidence is forcible".Page 24 of 30
R/CR.MA/2531/2012 JUDGMENT
37. The following facts are not in dispute;
37.1 The applicant herein is the publisher, printer and owner of the newspaper and the newspaper does not mention the applicant as the editor of the Divya Bhashkar.
37.2 The complainant has not specifically pleaded in his complaint the nature of the duties performed or responsibilities shouldered by the applicant as the owner of the newspaper.
37.3 There is no averment, at all, in the complaint that the applicant controls the selection of the matter that is published in the newspaper which alone would make him an editor as defined in section 1(1) of the Press Act.
38. In such circumstances, referred to above, I am of the view that the court of the learned Magistrate was not justified in law in issuing process to the applicant herein for the alleged offence.
39. In Mohd. Abdullakhan vs. Prakash K., (2018) 1 SCC 615, the Supreme Court observed that where defamatory matter is printed in a newspaper or a book etc. and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination. Even if any vicarious liability is to be fastened on the owner, appropriate averment should be there in the complaint. In the absence of specific averment in the complaint, only by virtue of the fact that the accused is the owner of the newspaper in which the defamatory article came to be published, by Page 25 of 30 R/CR.MA/2531/2012 JUDGMENT itself, would not be sufficient to put him on trial for the offence of defamation. Let me quote few relevant observations of the Supreme Court made in the case of Mohd. Abdullakha (supra);
"17. Whether the content of the appellant's complaint constitutes an offence punishable under any one or all or some of the above mentioned sections was not examined by the High Court for quashing the complaint against the respondent. So we need not trouble ourselves to deal with that question. We presume for the purpose of this appeal that the content of the appellant's complaint does disclose the facts necessary to establish the commission of one or all of the offences mentioned above. Whether there is sufficient evidence to establish the guilt of the respondent for any one of the above mentioned three offences is a matter that can be examined only after recording evidence at the time of trial. That can never be a subject matter of a proceeding under Section 482 Cr.P.C.
18. From the judgment under appeal, it appears that before the High Court it was argued on behalf of the respondent that there is no vicarious liability in criminal law and therefore the owner of a newspaper cannot be prosecuted for the offences of defamation. "2. The learned counsel for the petitioner would point out that there can be no vicarious liability insofar as the criminal law is concerned. The complainant's allegation of the defamatory material published in the newspaper against him, even if it is established, can only be sustained against the editor of the newspaper and not the owner of the newspaper. The petitioner admittedly was the owner. The newspaper carries a legend that the newspaper is edited and published on behalf of the petitioner and there is no dispute in this regard."
19. It appears from para 3 of the judgment that the appellant herein submitted in response to the above extracted contention of the respondent that the question is no longer res integra and is covered by a judgment of this Court in K.M. Mathew v. K.A. Abraham & Others.
Page 26 of 30R/CR.MA/2531/2012 JUDGMENT The High Court rejected the submission holding: ".......it is however noticed that the said decision was in respect of a managing editor, resident editor or a chief editor of respective newspaper publications, who were parties therein. Therefore, at the outset, it can be said that the said case could be distinguished from the case on hand, as, the petitioner is not claiming as an editor, who had any role in the publication of the newspaper. Therefore, it is a fit case where the petition should be allowed." The High Court concluded that prosecution of the respondent would lead to miscarriage of justice. A conclusion without any discussion and without disclosing any principle which forms the basis of the conclusion.
FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW'S CASE:
20. K.M. Mathew was the "Chief Editor" of a daily called Malayalam Manorama. When he was sought to be prosecuted for the offence of defamation, he approached the High Court under Section 482 Cr.P.C. praying that the prosecution be quashed on the ground that Section 7 of the Press and Registration of Books Act, 1867 only permits the prosecution of the Editor but not the Chief Editor. The High Court rejected the submission.
21. Even before this Court, the same submission was made.3 This Court rejected the submission holding:
"16. The contention of these appellants is not tenable. There is no statutory immunity for the Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control."
It was further held that though the presumption under Section 7 of the Press and Registration of Books Act, 1867 is not applicable to somebody whose name is printed in the newspaper as the Chief Editor, the complainant can still allege and prove that persons other than the Editor, if they are responsible for the publication of the defamatory material.
"20. 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 Page 27 of 30 R/CR.MA/2531/2012 JUDGMENT publication. 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."
22. K.M. Mathew's case has nothing to do with the question of vicarious liability. The argument in K.M. Mathew's case was that in view of Section 7 of the Press and Registration of Books Act, 1867 only the Editor of a newspaper could be prosecuted for defamation. Such a submission was rejected holding that Section 7 does not create any immunity in favour of persons other than the Editor of a newspaper. It only creates a rebuttable presumption that the person whose name is shown as the editor of the newspaper is responsible for the choice and publication of the material in the newspaper. K.M. Mathew's case made it clear that if a complaint contains allegations (which if proved would constitute defamation), person other than the one who is declared to be the editor of the newspapers can be prosecuted if they are alleged to be responsible for the publication of such defamatory material.
23. The High Court, in our opinion, without examining the ratio of K.M. Mathew's case chose to conclude that the decision is distinguishable. The judgment of the High Court is absolutely unstructured leaving much to be desired.
24. Vicarious liability for a crime is altogether a different matter. In England, at one point of time, the owner of a newspaper was held to be vicariously liable for an offence of defamation (libel). The history of law in this regard is succinctly stated by Lord Cockburn in R V. Holbrook. Though there appears to be some modification of the law subsequent to the enactment of Lord Campbell's Act i.e. the Libel Act 1843 (6&7 Vict C 96). Lord Campbell's Act did not apply to India. The Press and Registration of Books Act (25 of 1867) is made applicable to British India and continues to be in force by virtue of Page 28 of 30 R/CR.MA/2531/2012 JUDGMENT the declaration under Article 372 of the Constitution of India. There are material differences between the scheme and tenor of both the enactments. In Ramasami v. Lokanada, (1886) ILR 9 Mad 692, it was held:
"... But we cannot hold that the provisions of that Statute (Ed.Lord Campbell's Act) are applicable to this country, and we must determine whether the accused is or is not guilty of defamation with reference to the provisions of the Indian Penal Code. We consider that it would be a sufficient answer to the charge in this country if the accused showed that he entrusted in good faith the temporary management of the newspaper to a competent person during his absence, and that the libel was published without his authority, knowledge or consent. As the Judge has, however, misapprehended the effect of Act 25 of 1867, we shall set aside the order of acquittal made by him and direct him to restore the appeal to his file, to consider the evidence produced by the accused and then to dispose of the appeal with reference to the foregoing observations."
and reiterated in Emperor v. Bodi Narayana Rao (1909) ILR 32 Mad 338:
"Lord Campbell's Act, of course, is not in force in India, and the Criminal Law of England is not necessarily the same as the Criminal Law of India as contained in the Indian Penal Code ..."
25. The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation are neither discussed by the High Court in the judgment under appeal nor argued before us because the respondent neither appeared in person nor through any advocate. Therefore, we desist from examining the question in detail. But we are of the opinion that the question requires a serious examination in an appropriate case because the owner of a newspaper employs people to print, publish and sell the newspaper to make a financial gain out of the said activity. Each of the above mentioned activities is carried on by persons employed by the owner.
26. Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be Page 29 of 30 R/CR.MA/2531/2012 JUDGMENT made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.
27. Each case requires a careful scrutiny of the various questions indicated above. Neither prosecutions nor the power under Section 482 CrPC can be either conducted or exercised casually as was done in the case on hand."
40. In the overall view of the matter, I have reached to the conclusion that the order of process issued to the applicant herein deserves to be quashed.
41. In the result, this application succeeds and is hereby allowed. The proceedings of the Criminal Case No..40401 of 2006 in the court of the learned Judicial Magistrate, First Class, Surat is hereby quashed so far as the applicant herein (original accused No.1) is concerned. The case shall proceed further expeditiously in accordance with law so far as the other co- accused are concerned.
Direct service is permitted.
(J.B.PARDIWALA, J) Vahid Page 30 of 30