Punjab-Haryana High Court
Ramesh Chand Aggarwal vs State Of Haryana And Another on 26 November, 2012
Author: Sabina
Bench: Sabina
Crl. Misc. M No. 28342 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Misc. M No. 28342 of 2011(O&M)
Date of Decision: 26.11.2012
Ramesh Chand Aggarwal ..........Petitioner
Versus
State of Haryana and another ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.R.S.Thakur, Advocate
for the petitioner.
Mr.Gaurav Dhir, Deputy Advocate General, Haryana
Mr.Pankaj Dhir,Advocate for
Mr.Sudhir Kumar,Advocate for respondent No.2 .
**
Sabina, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure,1973 (for short `Cr.P.C.') seeking quashing of criminal complaint No. 247-1C of 2003 dated 13.9.2003 (Annexure P1) and summoning order dated 23.2.2004 (Annexure P3) alongwith all consequential proceedings arising therefrom.
Learned counsel for the petitioner has submitted that the petitioner was the Chairman, Publisher and Printer of the newspaper, namely, `Dainik Bhaskar'. Petitioner could not be prosecuted for the publication in the newspaper as in this regard the Editors working in the area were controlling the publication of the newspaper. In similar circumstances, the complaints against the Crl. Misc. M No. 28342 of 2011 (O&M) 2 petitioner under Sections 499, 500, 506 of the Indian Penal Code (`IPC' for short) were quashed qua the petitioner. In this regard, learned counsel has placed reliance on the order dated 1.4.2010 passed in Crl. Misc. No. 14177-M of 2009 (Annexure P4), orders passed in Crl. Misc. No.M- 30154 of 2010 decided on 22.12.2011 and Crl. Misc. No.M- 30155 of 2010 decided on 23.8.2012 .
Learned counsel for the respondent No.2, on the other hand, has submitted that the specific allegations have been levelled against the petitioner in the complaint. Hence, the criminal proceedings against the petitioner were liable to continue.
After hearing the learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed.
It has been held in State of Haryana vs. Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482,Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-Crl. Misc. M No. 28342 of 2011 (O&M) 3
(1)Where the allegations made in the first information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of Crl. Misc. M No. 28342 of 2011 (O&M) 4 the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
The case of the complainant-respondent No.2- Ghanshyam Dass Goyal is that on 22.8.2003, following article was published by the accused on the front page of `Dainik Bhaskar' `Bhiwani Edition'. The English translation of the news item, as reproduced in para 5 of the complaint, reads as under:-
"INALO LEADER INVOLVED IN THE THEFT OF TAX' Crl. Misc. M No. 28342 of 2011 (O&M) 5 The allegation of theft of crores of Sales Tax, enquiry into the matter started.
Bhaskar News, Charkhi Dadri, 21st August, the President of Inalo-Vyapar Mandal and Vice President of Market Committee, Charkhi Dadri, Ghanshyam Dass Goyal stands involved in tax theft of crores of rupees. The Taxation Department has started the enquiry after investigation. The market committee has also claimed highest outstanding market fees against him. Whereas Shri Goyal had dis- owned all the allegations, being bundle of lies. According to authenticated sources of Taxation Department,M/s Jai Jagdambe Trading Company,Charkhi Dadri has not incorporated information in the records regarding sale and purchase of more than one crore i.e. 1,93,07,000/-. It has been clearly stated in the notice issued by the department that as per records M/s Jai Jagdambe Trading Company has shown sale of Rs.1,56,74,360/- as tax-free which there is no proper record of its purchase and sale. Tax paid sale worth Rs. 21,39,792/- shown from registered dealers involved irregularities and is not as per rules. There is one other charge against the said Firm for not showing in its record regarding purchase of more than 2000 quintals of cotton seeds worth Rs.15,33,050/- from a Firm of Wrangle (AP). M/s Venkatest Corporation from 17.2.2001 to 31.3.2001 to 31.3.2001 against Bill Nos. CD-128, CD-184, CD-192, CD- Crl. Misc. M No. 28342 of 2011 (O&M) 6 262,CD-287 and CD-290. The Tax Department has verified and held that after enquiry from the Railway Department booking and delivery record, the above instalment of cotton seeds was purchased by M/s Jai Jagdambe Trading Company and its delivery was also obtained from the Railway. After corroboration from Railway enquiry, DETC has directed the defaulter Firm to appear in his office with entire relevant records regarding sales tax on 18.3.2003. In the enquiry, the accused Firm instead of producing the records, had submitted only a written reply. The department while dismissing the explanation gave another opportunity for 27.5.2003 for producing the records but the Propreitor of the Firm disobeyed the said notices and did not produce any record. In addition to that a sum of Rs.60,000/- was due towards market fees inspite of the fact that the Propreitor was Vice Chairman of the market Committee. (Contd. at page 14) (from page 13) "Inalo Leader"
In this connection, Nihal Singh Phogat, Secretary, Market Committee has admitted that a sum of Rs.60,000/- as market fees is due towards M/s Jai Jagdambe Trading Company and about which the necessary notice has been issued. But due to political pressure he has not commented regarding this recovery. The Excise and Taxation Department Officer has clearly warned in the notice to the above Firm that legal action would be taken for not Crl. Misc. M No. 28342 of 2011 (O&M) 7 producing the records regarding sale and purchase worth Rs.1,93,47,202/-.
In this connection Taxation Officer, Shri S.K.Sharma has admitted that enquiry has been started with regard to the irregularities by M/s Jai Jagdambe Trading Company. Shri Sharma has also stated that so many other enquiries are going on regarding such scams. The Proprietor of Jai Jagdambe Trading Company and Inalo Leader Shri Ghan Shyam Dass Goyal has denied all these allegations and has further stated that the Taxation Department should enquire into the matter as some unknown Firm has purchased cotton seeds in the name of his Firm. He has also clearly denied the facts that any market fees was due to him." The publication of the said news-article had caused great humiliation to the complainant and his images had been lowered in the eyes of his friends,relatives etc. A perusal of the complaint reveals that no specific allegations have been levelled against the petitioner qua his responsibility with regard to the publication of the above news item. It is not the case of the complainant that the petitioner was controlling the selection of material for publication of the news-item in the area to indicate that the petitioner was responsible for selecting the offending material for publication which had resulted in defamation of the petitioner in the eyes of public.
As per the Press and Registration of Books Act 1867 (for short ` the Press Act'), the term `Editor' has been defined as under:- Crl. Misc. M No. 28342 of 2011 (O&M) 8
"Editor" means the person who controls the selection of the matter that is published in a newspaper."
Section 7 of the Press Act reads as under:-
"Office copy of declaration to be prima facie evidence.- In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such 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 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]"
Thus, the `Editor' of the newspaper performs various functions and duties and is responsible for selection of matter published in the newspaper. The petitioner is not the Editor of the newspaper. Petitioner is the Chairman, Publisher and Printer of the Newspaper and is residing in Bhopal. A perusal of the complaint does not lead to the inference that the news-item in question was published with the Crl. Misc. M No. 28342 of 2011 (O&M) 9 knowledge and consent of the petitioner.
It has been held by the Apex Court in The State of Maharashtra vs. Dr. R.B.Chowdhari and others AIR 1968 Supreme Court 110 as under:-
"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 articles. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion, the presumption will attach to Madane as having selected the material for publication in the newspaper. It may not be out of place to note that Madane admitted that he had written this article. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question."
The Apex Court in Haji C.H.Mohammad Koya vs. Crl. Misc. M No. 28342 of 2011 (O&M) 10 T.K.S.M.A.Muthukoya AIR 1979 Supreme Court 154 has held as under:-
"The intention of the rule is merely to clarify who the editor of the paper is and once this is shown then there is a substantial though not a literal compliance of the rule. Secondly, the Press Act does not recognise any other legal entity except the editor in so far as the responsibilities of that office are concerned. Therefore, mere mention of the name of the Chief Editor is neither here nor there nor does it in any way attract the provisions of the Press Act particularly Section 7. Thirdly, it is not even pleaded in the petition, much less proved that the appellant being the Chief Editor, it was part of his duty to edit the paper and control the selection of the matter that was published in the newspaper which in fact has been demonstrably disproved by the appellant."
In H.K.Dua vs. Chander Mohan Deputy Chief Minister of Haryana 2008(3) RCR (Criminal) 64, it has been held as under:-
"From the foregoing discussions the legal position boils out that petitioner as an Editor-in-Chief of the Dainik Tribune did not fall within the expression `editor' in the Press Act and no presumption under Section 7 of the Press Act could be raised that he was responsible to control selection of the matter that was published in the news item. If no such presumption could be raised, then there remains no evidence or basis for criminal prosecution of the petitioner Crl. Misc. M No. 28342 of 2011 (O&M) 11 as stated earlier. The petitioner was impleaded as an accused merely on the ground of his being "Editor-in-chief"
of "Dainik Tribune" without any other averment in the complaint that he controlled selection of the matter that was published in the news item."
Similar complaints qua the petitioner were quashed by this Court vide order dated 1.4.2010 in Crl.Misc. No.14177-M of 2009, order dated 22.12.2011 in Crl. Misc. No. M-30154 of 2010 and order dated 23.8.2011 in Crl. Misc. No.M- 30155 of 2010 .
Accordingly, this petition is allowed. Criminal Complaint No. 247-1C of 2003 dated 13.9.2003 (Annexure P1) and all subsequent proceedings arising therefrom including the summoning order dated 23.2.2004 (Annexure P3) qua the petitioner are quashed.
( Sabina ) Judge November 26, 2012 arya