M.J. Akbar vs Indian Institute of Technology

Aruna Jagadeesan, J.—These Criminal Original Petitions are filed to quash the proceedings in CC. Nos. 7714 and 7716/2000 on the file of

the learned Metropolitan Magistrate, Saidapet, Chennai, in so far as the Petitioner, who is the Editor-in-Chief of the English daily Newspaper

Deccan Chronicle"" is concerned.

The brief facts are stated as follows:

The Respondent/complainant, viz. Indian Institute of Technology has been maintaining a very high standard in technical education in India and has

acquired a name for its academic excellence not only in India, but throughout the world. A publication was made in the English Daily Newspaper

Deccan Chronicle"" dated 8.8.2000 in Hyderabad and Bangalore Editions, which reads as under:

AP Tribal Girl fights her way Into IIT, brilliant student declared failed, tops after re-examination.

An Andhra tribal girl has managed to wrest admission into the prestigious IIT here after waging a do-or-die battle against the administration, which

first declared her as failed but back tracked subsequently in the face of evidence in her favour and the threat of agitation by the Periyar Dravidar

Kazhagam, a dalit party.

Ms. Sujee Teppal, who belongs to the Kammara Tribe in Bhimvaram, was so badly shaken up on learning that she failed in physics despite

topping mathematics and chemistry papers, that she even attempted suicide and was saved at the nick of time by Apollo Hospital here, according

to reliable sources.

Extensive investigations in the Institute reveal ""Sujee was failed deliberately in the Physics paper despite doing well-one suggestion widely heard in

the institute corridors was that the concern teacher ""punished"" her because she was ""too smart"" for his liking.

The Respondent has filed the complaint against R. Bhagwan Singh, the Reporter, M.J. Akbar, the Editor-in-Chief and O. Thomas, the Publisher of

Deccan Chronicle, arraying them as A1 to A3 for preparing and publishing the said news item in the Deccan Chronicle dated 8.8.2000 with the

common intention to malign and defame the complainant and thereby committed the offence punishable under Sections 120(b), 500, 501, 502

read with 34 and 120 of IPC.

The complainant has stated in the complaint that the aforesaid report is totally and grossly misleading and highly defamatory. It is further stated

that the tribal girl by name Sujee joined the preparatory course in the year 1999 along with 22 others and in February 2000, Sujee''s father was

informed by the Coordinator of the Preparatory Course that her performance was not upto the mark in Physics in First Term of the Course and

she must put in a great effort in that subject. The father of Sujee sent a reply to the Director, thanking the Director for the suggestions made and

assuring that his daughter would do well in future. It is further stated that Sujee along with 16 other students was also informed to improve their

performance in physics. Out of 23 students attended the Preparatory 1999 Course, about 1/3rd failed and Sujee was one among them, who failed

to secure the pass marks in the Examination. However, the offending news item proceeded maliciously as if she stood first among the 6 candidates

in the test, which is false and without any basis. Further a perusal of the offending news item would make it clear that the heading note ""teacher

punished Sujee because she was too smart for his liking"" is totally false.

The Petitioner has submitted that the very complaint is frivolous and wholly devoid of merits. According to the Petitioner, the Metropolitan

Magistrate, who has taken cognizance, has no jurisdiction and therefore, the complaint cannot be sustained on the said ground also. It is submitted

by him that the alleged defamatory news article was published in the Deccan Chronicle of Hyderabad Edition, which relates to CC. No.

7714/2000 and in Bangalore edition, which relates to CC. No. 7716/2000. According to him, the Newspaper does not have any publishing center

in Chennai or in any other places in Tamil Nadu nor are the papers distributed in Tamil Nadu. That apart, it does not have any arrangement for

distribution of the Newspapers by airmail or other means, excepting in the actual place of publication of the said Newspaper. So, it is contended

that the learned Magistrate has no jurisdiction to take cognizance of offence and the proceedings as against the Petitioner are without jurisdiction.

In these Criminal Original Petitions, one of the contentions raised by Mr. Sathish Parasaran, the learned Counsel for the Petitioner is that the

Metropolitan Magistrate Court at Chennai has no jurisdiction to take cognizance of the offence, since the publication was made in the Hyderabad

and Bangalore Editions of Deccan Chronicle and in fact, the Newspaper did not have any publishing center in Chennai and therefore, the complaint

itself cannot be sustained.

It is necessary, at this juncture, to refer to Section 179 of Code of Criminal Procedure, which lays down that when a person is accused of a

commission of an offence by a reason of anything which has been done and of any consequence, which has ensued such offence may be enquired

into or tried by a court within the local limits of whose jurisdiction, any such thing has been done, or any such consequence has ensued. Therefore,

where an act has been done, which is an offence and the consequence has ensued thereon, both the courts can have jurisdiction to entertain or to

take cognizance of the offence.

The contention of the Petitioner is that the said Newspaper is published and circulated within Hyderabad City of Andhra Pradesh and Bangalore

of Karnataka State and as such, the court at Chennai has no jurisdiction to entertain the complainant. There is no dispute that the Deccan

Chronicle containing the offending news item was published in the editions of Hyderabad and Bangalore. According to the complainant, the said

daily Newspaper has been circulated throughout India and read by many persons and the same can be read on the website in all computers with

an internet connection. It is averred in the complaint that several persons rang up to the Director and other Senior Faculty Members of the

Respondent and wrote to them expressing their anguish on reading the report. Although the offending news item was published in the above said

two places, the consequence had ensued at Chennai, where the Respondent Institute is functioning and as such, the Metropolitan Magistrate court

at Chennai has got jurisdiction.

The Apex Court had considered provisions of Section 179 of Code of Criminal Procedure in the case of State of Punjab Vs. Nohar Chand, .

The matter is relating to manufacture of sub standard fertilizer and the marketing of the same at different places. The Honourable Supreme Court

has held that the place where the sub standard fertilizer was manufactured and the place where it is marketed, the court has jurisdiction to enquiry

into or try the case in both the courts.

In the case of M.P. Narayana Pillai and Others Vs. M.P. Chacko and Another, , the High Court of Kerala in the matter relating to defamatory

proceedings out of the news item published and the congnizance taken by the court was challenged, held as under:

One of the contentions of the Petitioners is that the Magistrate acted illegally in taking cognizance of the offence when he had no territorial

jurisdiction to entertain the complaint. That contention does not appear to be correct. It is true that the Kalakaumudi Weekly is printed and

published from Trivandram. But in order to maintain a prosecution for defamation in a particular Court there need only be publication of the libel

within the jurisdiction of the court where the complaint is filed. Jurisdiction has to be decided on the basis of the allegations in the complaint for the

purpose of a proceeding u/s 499. The very allegation of the 1st Respondent in the complaint is that it was published at Vaikom also and it was

from there that he got and read a copy of it. Being a weekly publication intended to be read by people, it is enough for the complainant to show

that the publication was delivered within the limits of the territorial jurisdiction of the court in order to invest that court with jurisdiction. It need not

be shown that the defamatory matter was seen or read by any particular person within the jurisdiction of that court. Since the weekly is being

printed and published for the purpose of reading by the people when it is shown that it was published it could be presumed that it was read.

The same view was reiterated in the case of Dr. Subramaniam Swamy v. Prabhakar S. Pai and Anr. 1984 Cri.LJ 1329.

Considering the averments made in the present case, I am in complete agreement with the decisions of the High Court of Kerala that where the

offending publication was delivered and read by the complainant, the court at that place would have jurisdiction to try the case. Therefore, the

Metropolitan Magistrate Court at Chennai has got jurisdiction to take cognizance of the case and the contention of the Petitioner has no merits.

The Petitioner has next submitted that the Petitioner being the Editor in Chief cannot be prosecuted for the offence alleged and absolutely he

has no role to play either in the selection of the matter or in the publication of the said news item.

Mr. Sathish Parasaran, the learned Counsel for the Petitioner would contend that the complainant has proceeded on the erroneous premise

and gross misappropriation of the provisions contained in Section 7 of the Press and Registration of Books Act that the Petitioner, being the Editor

in Chief, is in charge of checking the news or information published in all the editions of the Deccan Chronicle. The learned Counsel drew the

attention of this court to the definition contained in Section 11 of the said Act, wherein the ''Editor'' is defined to mean that a person, who controls

the selection of the matter that is to be published in Newspaper. He would contend that in the absence of any allegation to hold the Petitioner to be

the Editor, no cause of action would arise against the Petitioner.

In support of his contentions, he referred to the unreported decision of the Andra Pradesh High Court rendered in CMP. No. 3094/1997

involving the same Petitioner, wherein the High Court of Andhra Pradesh, after considering the various decisions rendered by the Apex Court,

proceeded to hold that no prosecution u/s 7 of the Press and Registration of Books Act could at all be raised against the Chief Editor, so as to

warrant the Petitioner for being arrayed as an accused. Reliance was placed on the decisions rendered in the cases of Haji C.H. Mohammad Koya

v. TKSMA. Muthukoya AIR-1979-SC-154 and K.M. Mathew v. State of Kerala and Anr. 1992-1-SCC-217. According to the Petitioner, the

above said decisions are only reaffirmation of the well settled jurisdiction of law laid down by the Honourable Supreme Court in various decisions.

In the cases of Haji C.H. Mohammad Koya Vs. T.K.S.M.A. Muthukoya, , the Honourable Supreme Court has observed as follows:

Section 8A of the Press Act provided 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 of 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. It may be to note the following acts here:

That the issues of Chandrika shown to us clearly and unmistakably mention the name of Aboobaker as the printer, publisher and editor of

Chandrika and does not mention the appellant as the Editor of Chandrika. The Appellant is merely shown as the Chief Editor but this is an offence

which is not at all contemplated by the Press Act.

That if the Appellant was really the editor of the paper then PW.2 Aboobaker ought to have resorted to S.8A to correct the mistake in the

paper where his name was shown as the editor but no such thing has been done. On the other hand, PW.2 Aboobaker tacitly and clearly admits

that he is the editor of the paper.

That the Petitioner has not at all pleaded in his petition the nature of the duties performed or responsibilities shouldered by the Appellant as Chief

Editor. There is no averment at all in the petition that the appellant controls the selection of matter that is published in the newspaper which alone

would make him an editor as defined in Section 1(1) of the Press Act. The word ''Chief Editor'' is clearly absent from the Press Act and in fact

foreign to it because the Press Act has selected only one person who has a special status and that is the editor who can be sued, if necessary, or

can use and against whom alone a presumption u/s 7 of the Press Act can be drawn. While holding that the presumption u/s 7 of the Press Act is

available to the Petitioner, the High Court has completely overlooked the aforesaid aspects mentioned by us. The law on the subject is absolutely

clear and there are a number of decisions of this court which have interpreted the relevant Sections of the Press Act.

The decision rendered in the case of K.M. Mathew Vs. State of Kerala and another, , is relating to prosecution of the Chief Editor for certain

publication in the Newspaper. His case was dropped by the Magistrate on the ground that it has not been alleged in the complaint that the Chief

Editor was responsible for selection of the news item and the publication thereof. There was no averment in the complaint that the Chief Editor had

perused the material or edited before its publication or otherwise it was published with his knowledge or consent. When the matter went to the

High Court, it quashed the order of the Magistrate on the ground that it was a summons case and the Magistrate had no power after taking

cognizance of the offence to drop the proceedings. On appeal to the Honourable Supreme Court, the Supreme Court found that the High Court

had been too technical in this regard and on facts found that there was no averment against the Chief Editor, except the motive attributed to him.

The Honourable Supreme Court rejected the contention that there was a presumption u/s 7 of the Press and Registration of Books Act against the

Chief Editor and reiterated that the Chief Editor''s name was not at all mentioned in Section 7 of the said Act.

Mr. Vijaya Narayanan, the learned senior Counsel for the Respondent drew the attention of this Court to the decision rendered in the case of

K.M. Mathew Vs. K.A. Abraham and Others, in support of his contention that there could be a presumption against the Editor, whose name is

printed in the Newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication.

Though, such a similar presumption cannot be drawn against the Chief Editor, the complainant can still allege and prove that they had knowledge

and they were responsible for the publication of the defamatory news item. He would contend that the presumption u/s 7 is a rebuttable

presumption and the same can be proved otherwise which would amount that some body other than the Editor can also be held responsible for

selecting the matter for publication in the Newspaper.

The factual aspects of the said case is that the complainant had specifically alleged that the appellants had knowledge of the publication of the

alleged defamatory matter and they were responsible for such publication. On such facts, the Honourable Supreme Court in the decision cited

supra held as follows:

It is true that judicial process should not be an instrument of oppression or needless harassment and the Magistrate while taking cognizance

should be satisfied that there is a prima facie case against the accused and at that he should be circumspect and judicious in exercising discretion

and should take all relevant facts into consideration before issuing process and that vindication of majesty of justice and maintenance of law order

in the Society are the prime objects of criminal justice and it shall not be the means to wreak vengeance, but, at the same time, ''the inherent power

of the court u/s 482 Cr.PC should be very sparingly and cautiously used and only when the court comes to the conclusion that there would be

manifest injustice or there would be abuse of the process of the court, if such power is not exercised. ""so far as the order of cognizance by a

Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the

other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage, it is not open either to sift

the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out."" See: State of Bihar Vs. Rajendra

Agrawalla, .

In this case, in the complaint it is specifically averred that the Petitioner/2nd accused has failed to check up the news item or the information

supplied to him by the 1st accused before the publication of the same in his paper and deliberately and intentionally failed to do so. Whether he has

got a duty to check up the news or the information supplied to him and whether he deliberately and intentionally failed to check up the correctness

or otherwise of the said news item can be gone into only at the time of trial. In this case, the Petitioner can adduce evidence and can rebut the

presumption by showing that he has nothing to do with the publication of the offending news article at the time of trial. Therefore, I am unable to

find any illegality in the cognizance taken by the learned Magistrate as against the Petitioner for the offence committed as alleged. Therefore, there

are no merits to quash the impugned criminal proceedings.

In the result, these Criminal Original Petitions fail and are dismissed, as devoid of merits. However, it is open to the Petitioners to raise all his

contentions before the court below and establish them in the course of trial.