Prabhash Joshi and Others vs Dharam Singh

Lokeshwar Singh Panta, J.—Petitioners namely Prabhash Joshi and Om Thanvi have preferred this petition u/s 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India challenging the correctness of the order dated June 27, 1991 passed by Chief Judicial Magistrate, Hamirpur in case No. 44-I/91, summoning the Petitioners and also for quashing the proceedings initiated against them on the basis of private complaint made by Respondent Dharam Singh, Ex-Revenue Minister, u/s 500 read with Section 120B of the Indian Penal Code.

Petitioner No. 1 is the Editor-in-Chief of Newspaper Hindi Daily ''Jansatta'' Delhi Office. Petitioner No. 2 is the Resident Editor of Chandigarh edition of the Newspaper The Petitioners submit that during the last Parliamentary election large number of prominent persons joined different parties including the Bhartiya Janta Party. One Shri. Dharam Singh belonging to Mewa Constituency alongwith some other persons also resigned from Congress Party and joined the Bhartiya Janta Party. Copy of the statement made by Dharam Singh on 21-5-1991 to this effect is annexed as Annexure P-l The news about Dharam Singh''s joining Bhartiya Janta Party was published in various News Papers namely, ''Jansatta'' Indian Express, ''Dain''k Tribune'' and the ''English Tribune'' on different dates, copies whereof are attached as Annexures P-2 and P-3 respectively. It is alleged by the Petitioners that Chaudhary Dharam Singh was annoyed with Rakesh Rokki, the ''Jansatta'' CorRespondent and had been trying to exert pressure on him so as to force him to submit reports in his favour and in favour of his party i.e. Congress (1) Annoyed with the independent and objective reporting of Rakesh Rokky, the complainant-Respondent had been threatening the local corRespondent and also misbehaved with him as a result of which the Local Journalises had strongly protested against the misbehaviour of the Respondent and the matter was reported in Newspaper including ''Punjab Kesri'' on 26-4-1991. The Respondent in order to further harass the ''Jansatta'' CorRespondent picked up the news item published in ''Jansatta'' on 23-4-1991 (Annexure P-2) and initiated criminal proceedings against the corRespondent as well as against the Petitioners. It is alleged that the Petitioners have been singled out though the same news items were published by various other Newspapers and thus, the action of the Respondent in initiating the case against the Petitioners is mala fide and with the intention to put up due pressure on Newspapers and the CorRespondents in order to gain some political advantage by compelling them to publish only those news items which are favourable to the Respondent.

On the basis of the complaint, the trial Court examined the complainant and the witnesses and issued process against Petitioners No. 1 and 2 only for the commission of offence punishable u/s 500 read with Section 120B of the Indian Penal Code The Petitioners have assailed the impugned order in this petition.

Petition was admitted by this Court on 21-10-1991 and further proceedings in the case pending in the Court of the Chief Judicial Magistrate, Hamirpur were stayed The Respondent was duly served but remained absent.

Shri R.C. Bakshi learned Counsel for the Petitioners contended that the allegations in the complaint are baseless, false and frivolous. There is no material on the record of the case to justify the issuance of process against the Petitioners. The complaint made by the Respondent against the Petitioners is not only against the provisions of the Press and Registration of Books Act (25 of 1867) but also biased since it has been made in order to harass and humiliate the Petitioners. He contended that the complaint contains no allegation against Petitioner No. 1. The Editor-in-Chief is not at all involved in the actual editing, reporting, printing or publishing or selection of materials for publication of news items in the local edition. The News report pertains to another Dharam Singh and is true. It is also alleged that a bare perusal of the complaint would show that the Petitioners have not committed any offence to warrant action for the alleged offences. Petitioner No. 3 is Manager in the office of Indian Express News Paper Ltd. at Chandigarh and was not in any manner concerned with the collection, control or selection of the matter printed in the Newspaper. It is not alleged in the complaint as to how the Petitioners batched conspiracy or connived with each other.

It is further submitted that the learned trial Court without due application of mind issued the process against the Petitioners thereby causing immense injustice to them. His further submission is that no offence was meant, that the tenor of the report was not derogatory and that there was only a statement of fact pertaining to some other Dharam Singh.

I have gone through the complaint and the statements of the witnesses examined by the complainant. I find that the facts contained in the complaint taken at their face value and accepted in their entirety, do not, prima facie, constitute any offence against the Petitioners justifying any kind of proceedings against them. It is patently and inherently against the law. To allow the proceedings to continue would be an abuse of the process of the Court. The order of the trial Court discloses that it has been passed in a mechanical form since no ground for proceeding against the Petitioners has been recorded. This cannot stand judicial scrutiny and is therefore, liable to be set aside

There is another aspect of the case which deserves to be examined. Petitioner No. 1 has been described to be the Editor-in-Chief of ''Jansatta'' (Indian Express Group New Delhi) whereas Petitioner No. 2 who has not been summoned by the trial Court has been described Resident Editor ''Jansatta'' Chandigarh The complainant is not clear whether Petitioners are in any manner connected with the actual reporting, editing, printing or publishing or selection of materials for publication of news items in the local edition published from Chandigarh. It is not possible to say the exact relationship of Petitioners with the publication in question. In this way, it is not a proper complaint in the eye of law. In the absence of any allegation in the complaint pointing out that the Petitioners are directly concerned with the actual reporting, editing, printing or publishing of the paper, it cannot be said that the Petitioners are liable to be proceeded against for the impugned publication. In the absence of any allegation in the complaint that the Petitioners were directly incharge of and responsible to the Company for the conduct of the business of the Company, liability for the offence u/s 40 of the Companies Act cannot be attributed to any one of them. The words ''directly incharge'' are significant and excludes persons who may be indirectly responsible for the Company. In the absence of specific averments in the complaint that the Petitioners were direotly incharge of and responsible to the Company for the conduct of the business of the Company, it is difficult to make them liable for the allegations. (See State of Madras Vs. C.V. Parekh and Another, .

There is one more point that touches upon the liability of the Chief Editor. Editor is liable for the material published by reason of Section 7 of the Press and Registration of Books Act (25 of 1867). The Editor is defined in Section 1(1) of the Act as the person selecting material for publication The definition is not by nomenclature but functional The ambit of the section was considered by the Supreme Court in Haji C.H. Mohammad Koya Vs. T.K.S.M.A. Muthukoya, . In that case, Fazal Ali J. speaking for the Court said:

...the Press Act does not recognize 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.

In K.M. Mathew Vs. State of Kerala and another, K. Jagannatha Shetty, J. speaking for the Bench in para 9 observed:

...In the instant case there is no averment against the Chief Editor except the motive attributed to him. Even the motive alleged is general and vague. The complainant seems to rely upon the presumption u/s 7 of the Press and Registration of Books Act, 1867 (''the Act''). But Section 7 of the Act has no applicability for a person who is simply named as ''Chief Editor''. The presumption u/s 7 is only against the person whose name is printed as ''Editor'' as required u/s 5(1). There is a mandatory (though rebuttable presumption that the person whose name is printed as ''Editor'' is the editor of every portion of that issue of the newspaper of which a copy is produced Section 1(1) of the Act defines ''Editor'' to mean ''the person who controls the selection of the matter that is published in a newspaper''. Section 7 raises the presumption in respect of a person who is named as the Editor and printed as such on every copy of the newspaper. The Act does not recognise any other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him u/s 7 of the Act.

Series of decisions of the Supreme Court are relied upon by the Hon''ble Judge in that case.

Going to the averments in the complaint, the basis of joining the Petitioners in this complaint u/s 120B of the Indian Penal Code have not been explained. There are no positive averments in the complaint of knowledge of the objectionable character of the matter. It has not been explained how these Petitioners hatched cons piracy or connived with each other to form an intention to damage the reputation of the complainant by making alleged impugned communication. There is complete lack of material to support this allegation. Simply because the complainant may have some kind of grievance against the local corRespondent, others involved in this case cannot be added as parties. In the absence of positive allegations, the Chief Judicial Magistrate was not justified in directing the summoning of the Petitioners and proceeding with the case. To ask the Petitioner to undergo the trial of the case merely on the ground of the issue of process would be oppressive No person should be tried without the prima facie, case. The view taken by the trial Court is untenable.

The result of the aforesaid examination of the matter is that it is a lame prosecution and cannot be allowed to continue since it amounts to grave abuse of the process of the Court. The order of the trial Court dated 27-6-1991 is quashed and set aside and further proceedings in case No. 44-I/91, pending in the Court of the Chief Judicial Magistrate, Hamirpur, are also hereby quashed.