JAYANTA BARUAH and ANR. vs AJIT SINGH

1.By this application u/s 482 CrPC, the petitioners have prayed for setting aside the orders dated 22/06/2011 passed by the learned Judicial Magistrate,

Sonitpur, Tezpur, in CR Case No. 171/2011, whereby the learned Magistrate took cognizance and issued process against the petitioners as well as the

order dated 16/11/2011, whereby the learned Magistrate refused to recall the process issued against the petitioners and for quashing the criminal

proceedings in CR Case No. 171/2011.

Heard Mr. P. Kataki, learned counsel for the petitioners and Mr. DK Medhi for the respondent.

The respondent lodged a complaint before the Magistrate u/s 500 IPC read with section 34 of the IPC against five persons including the present

petitioners, who have been arrayed as accused No. 3 and 5. The complainant alleged in a complaint that the Assamese Daily newspaper “Asomiya

Pratidin"" published a news item titled “Bihalit arakkhir sahajugate bhu-mafiar doratmya†in its issue dated 02-12-2010. It was alleged in the

complaint, that such news item lowered the reputation of the complainant in the eyes of his well-wishers, friends, relatives and general people of the

area, where he permanently resides. Accused No. 1 is the company which publishes the newspaper, the accused No. 2, 3 and 4 have been arrayed as

chief editor, editor and executive editor respectively and accused No. 5 has been arrayed as publisher of the newspaper. On the basis of the said

complaint, learned Magistrate took cognizance and issued process against all the accused persons named in the complaint.

Aggrieved by the order of issuing process, the petitioners, who have been arrayed as accused No. 3 and 5 approached the learned trial court to

recall the summons issued against them. However, learned Magistrate rejected the said petition with the observation that once the process was issued,

magistrate could not review its own order. Aggrieved by the order of the learned Magistrate issuing process and also the order refusing to recall the

process, the petitioners have filed the instant petition for setting aside the order of the Magistrate taking cognizance and also for quashing the

proceeding.

Learned counsel for the petitioners, Mr. P. Kataki submitted that there was no allegation against the present petitioners in the complaint. The

accused No. 5 was impleaded only because the newspaper was published by Jatin Choudhury, publisher on behalf of Jayanta Baruah. Accused No. 3

Ajit Kumar Bhuyan was arrayed as editor, though he was not editor of the paper at the relevant time. He was arrayed as an editor, besides impleading

the chief editor as well as the executive editor, who were declared as editors of the newspaper. Learned counsel, Mr Kataki, relying on section 7 of

the Press and Regulation of Books Act, 1867 (hereinafter referred to as the Press Act) submitted that no presumption of committing offence by the

petitioners impleaded as accused No. 3 and 5 could be taken in absence of specific allegation/accusation against them to show that they were either in

any way involved in publication of the news item or they had knowledge or connivance in publication of news item. Learned counsel, in support of his

submission, also placed reliance on a decision of this Court in Jayanta Kumar Baruah Vs. Dilip Barua, reported in 2014 (2) GLT 93.

Learned counsel, Mr. DK Medhi for the respondent submitted that learned trial court committed no illegality or irregularity in taking cognizance of

offence u/s 500 IPC against the petitioners as they were liable to be prosecuted being publisher and editor of the newspaper.

Section 5 (2) of the Press Act provides that the printer and publisher of every newspaper shall appear in person or by agent authorised in this behalf

in accordance with rules under section 20,before a District, Presidency or Sub-Divisional Magistrate within whose local jurisdiction such newspaper

shall be printed or published and shall make and subscribe, in duplicate, a declaration to the effect, that he is the printer (or publisher, or printer and

publisher) of the newspaper entitled (name of the newspaper) and to be printed or published, as the case may be, at (premises where the printing or

publication is conducted). Sub section (2a) provides that every declaration under Rule 2 shall specify the title of the newspaper, the language in which

it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed. A declaration in respect of a

newspaper made under Rule (2) as provided by section 5 (2c) and authentication under section 6 shall be necessary before the newspaper is

published.

Section 7 of the Press and Registration of Books Act, 1867 reads as under :-

Office copy of declaration to be prima facie evidence --In any legal proceeding whatever, as well as criminal, the production of a copy of such

declaration as is aforesaid, attested by the seal of some Court empowered by this act to have the custody of such declaration, [or, in the case of the

editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held (unless the contrary be proved) to be sufficient

evidence, as against the person whose name shall be subscribed to such evidence, [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 [newspaper] whereof the

title shall correspond with the title of every [newspaper] mentioned in the declaration , [for the editor of every portion of that issue of the newspaper

of which a copy is produced].

A plain reading of the provision of section 7 of the Act makes it clear that it enables the court to draw a presumption against the editor, printer or

publisher of the newspaper, whose names have been declared and printed in the newspaper, as editor, publisher and printer. Though such presumption

is rebuttable one, the court can always take presumption against those categories of persons related to the newspaper in view of section 7 of the Act.

However, any other person/persons, who may be owner or proprietor or related to the newspaper in any other manner cannot be held liable for

publication of news item on presumption, unless there are allegations specifically attributing to them showing that they were in any manner connected

with the publication of the news item or they had knowledge about the publication beforehand. The reason being that in criminal law there cannot be

any vicarious liability for criminal action unless the statute provides.

On identical facts this High Court in Jayanta Barua and Anr., reported in 2014 (2) GLT 93, where one of the petitioner of the instant case was the

petitioner held in para 16 & 17 as under :-

“16) A perusal of Section 7 would go to show that under Section 7 of the act, in any legal proceeding, civil as well as criminal, unless the contrary

is proved, production of a declaration or in the case of the editor, a copy of the newspaper containing the name of the editor, shall be held to be

sufficient evidence that the persons whose name appear in the declaration as the printer or publisher, or printer and publisher are the printer or

publisher, or the printer and publisher and the name of the editor as printed in the newspaper is the editor of every portion of that issue of the

newspaper. Thus, presumption can be drawn against the editor, publisher and printer with regard to the publication of a news item. In view of the

aforesaid, the persons declared as editor, publisher and printer are liable to any defamatory imputation in any news item in a newspaper as

presumption as to awareness of contents of news item can be raised against them. It is to be noted selection of news item cannot amount to making of

news. editor selects the news and the printer and publisher publish the news item. Publication of imputation alone constitutes an offence under Section

499 IPC.

17) There is no presumption that an owner of a newspaper is responsible for the publication of any defamatory matter published in his newspaper. A

liability for publication can be fastened on him if there are some materials to show that he had prior knowledge or that he was somehow connected

with the publication of the defamatory news item. Same is the position with regard to the proprietor of a press where an alleged defamatory article or

news item is printed.â€​

It appears from the declaration and the newspaper, that the news item was published by Jatin Choudhury on behalf of Jayanta Barua and printed

at Shadin Printers, Babunimaidan, Guwahati. The chief editor and the executive editor have been shown as Haider Hussain and Sanjib Kr. Phukan

respectively. Therefore, in view of section 7 of the Act, court could take a presumption against Jatin Choudhury as publishers, the printing press as

well as the two editors, who had been declared as editors as per the law. Though the persons, whose names have been declared as publishers or

editors, there could be a presumption against them, such presumption are rebuttable like any other presumption. So far any other persons, such as

proprietor or anyone who may be concerned, there could be no presumption to fasten criminal liability, upon such persons for the publication of the

news item in absence of specific allegations against them. In order to fasten such persons not covered by the declaration, with the criminal liability

there must be some allegations against them showing that they were anyway connected with the publication of such news item. Merely because a

person is the owner or proprietor, he cannot be held liable vicariously for the act committed by others.

In the present case, though Ajit Kumar Bhuyan was arrayed as accused No. 3 in the capacity of editor, from the declaration, it is abundantly clear

that at the relevant time, Ajit Kr. Bhuyan was not the editor of the newspaper as per declaration. The chief editor was one Haider Hussain who has

been arrayed as accused No. 2 and one Sanjib Kr. Phukan, executive editor, who has been arrayed as accused No. 4. Jayanta Baruah and one Jatin

Choudhury had been jointly arrayed as accused No. 5. But from the declaration, it appears that Jayanta Baruah was not directly connected with the

publication of the news item. Since it was Jatin Choudhury, who indeed published the news item on behalf of Jayanta Baruah, there could not be any

presumption of vicarious liability against Jayanta Baruah for the criminal act, if, any, done by Jatin Choudhury, inasmuch as, there was no allegations

or materials attributing any knowledge or connivance to Jayanta Baruah in publication of the news item in the present case.

In para 13 of the complaint, it was averred that accused nos. 2, 3 and 4 have been arrayed as chief editor, editor and executive editor of the said

newspaper. The materials on record show that in the declaration accused/petitioner Ajit Kr. Bhuyan was not declared as editor. In support of the

allegations made in the complaint, that the petitioner Ajit kr. Bhuyan was the editor of the newspaper “Asomiya Pratidin†at the relevant time, the

petitioner filed an affidavit and also a certificate issued by personal officer of the Shadin Printers, being the publisher of the newspaper, stating that

Ajit Kr. Bhuyan was associated as editor of the Asomiya Pratidin since 08-02-2008 to 15-02-2010. However, learned counsel, Mr Kataki submits that

he resigned from Asomiya Pratidin and was not working as editor of Asomiya Pratidin at the relevant time. As indicated above, presumption of

culpability is permissible only against the editor, publisher or printer, who have been declared as such, under the provision of the Press Act. Ajit Kr.

Bhuyan having not been declared as editor, he could not be fastened with criminal liability for publication of any news item without any specific

allegation against him, that he was also responsible for publication of the concerned news item. Evidently there was no specific allegation against Ajit

Kr. Bhuyan in the complaint.

When no specific allegations was made in the complaint against the petitioners Jayanta Baruah and Ajit Kr. Bhuyan showing their involvement or

knowledge or connivance in the publication of the news item, they could not be made liable criminally for the publication of the news item in the

present case. As already indicated above, vicarious liability in a criminal offence cannot be attributed to any person, unless the statute provides, the

process ought not to have been issued against the petitioners Jayanta Baruah and Ajit Kr. Bhuyan, as there was no specific allegations against them in

the complaint.

In view of the forgoing discussions, I am of the considered opinion that the impugned order dated 22-6-11 passed by the learned Judicial

Magistrate, Sonitpur, Tezpur, taking cognizance and issuing process against Jayanta Baruah and Ajit Kr. Bhuyan deserves to be set aside, as no

offence was made out in the complaint against the petitioners.

Accordingly, the criminal petition is allowed and the proceeding in CR Case No. 171/2011, so far it relates to petitioners Jayanta Kr. Barua and

Ajit Kumar Bhuyan is quashed. The proceeding against other accused shall continue.

Send back the LCR.