Rakesh Agrawal and Others vs B.S. Jaggi

R.C. Mishra, J.—This is a petition, u/s 482 of the Code of Criminal Procedure (for short ''the Code'') for quashing of the proceedings pending as R.T. No. 3553/08 before CJM, Satna. In that case, cognizance of the offence punishable u/s 500 of the IPC has been taken against the petitioners and co-accused Bharat Saxena, upon a complaint made by the respondent in respect of an allegedly defamatory news item published in Dainik Bhaskar, Satna on 12.4.2008. The news item in question contained imputation to the effect that the respondent, who was posted as Town Inspector at City Kotwali, Satna, had been behaving in an erratic and uncivilized manner in his bid to project himself as a Police Wala Gunda.

The corresponding declaration printed in the Newspaper reflects that at the relevant point of time, the petitioners were working respectively as Managing Editor, Chief Editor of the Newspaper and Managing Director of the Dainik Bhaskar Prakashan Private Limited.

Learned Senior Counsel for the petitioners has strenuously contended that their prosecution is an abuse of the process of the Court in view of the well settled position of law as applicable to the facts of the case. Placing implicit reliance on the decision of the Supreme Court in K.M. Mathew Vs. State of Kerala and another, he has further submitted that no presumption, u/s 7 of Press and Registration of Books Act, 1867 (for brevity ''the Act''), can be drawn against petitioner nos. 1 and 2 as none of them had any concern with the functions of the Editor, as defined in Section 1(1) of the Act. Reference has also been made to the decision of the Bombay High Court in Shri Vivek Goenka, Managing Editor, "LOKSATTA" Vs. State of Maharashtra and Sanjay Devdas Sonawani, , to buttress the contention that Petitioner No. 3, being the Managing Director of the Publication Company, was supposed to have the control over the management of the office of the newspaper and its financial aspects only.

Learned Senior Counsel appearing on behalf of the respondent has contended that the expression "sufficient ground" used in Sections 203 and 204 means satisfaction that a prima facie case is made out against the person accused of committing an offence and does not mean sufficient ground for the purpose of conviction. According to him, the complaint against the petitioners is also maintainable as the presumption contained in Section 7 is a rebuttable one.

In response, learned Senior Counsel for the petitioners has submitted that no specific allegation against anyone of the petitioners suggesting that he had any role to play in publication of the offending news item, has been made by the respondent in his examination, u/s 200 of the Code, or by anyone of his witnesses namely Sudama Prasad, Shiv Kumar Gupta and Arvind Shukla, in his examination, u/s 202 thereof.

Before proceeding to enter into the merits of the rival contentions, it would be necessary to first advert to Section 7 and other relevant provisions of the Act-

Section 7. 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 he 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, for the editor of every portion of that issue of the newspaper of which a copy is produced.

Definitions of ''Editor'' and ''Newspaper'' have been given in Section 1(1) of the Act as under:-

"Editor" means the person who controls the selection of the matter that is published in a newspaper.

"Newspaper" means any printed periodical work containing public news or comments on public news.

Section 5 prescribes rules as to publication of newspapers in the following terms-

No newspaper shall be published in India, except in conformity with the rules hereinafter laid down:

(1) 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.

Section 8-A enables a person whose name has been incorrectly published as editor may make a declaration before a Magistrate. It reads-

If any person, whose name has appeared as editor on a copy of a newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Sub-divisional Magistrate and make a declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate after making such inquiry or causing such inquiry to be made as he may consider necessary is satisfied that such declaration is true, he shall certify accordingly, and on that certificate being given the provisions of Section 7 shall not apply to that person in respect of that issue of the newspaper.

The Magistrate may extend the period allowed by this section in any case where he is satisfied that such person was prevented by sufficient cause from appearing and making the declaration within that period.

As explained by the Apex Court in K.M. Mathew Vs. K.A. Abraham and Others,

A conjoint reading of these provisions will go to show that in the case of publication of any newspaper, each copy of the publication shall contain the names of the owner and the editor who have printed and published that newspaper. u/s 7 of the Act, there is a presumption that the Editor whose name is printed in the newspaper as Editor shall be held to be the Editor in any civil or criminal proceedings in respect of that publication and the production of a copy of the newspaper containing his name printed thereon as Editor shall be deemed to be sufficient evidence to prove that fact, and as the ''Editor'' has been defined as the person who controls the selection of the matter that is published in a newspaper, the presumption would go to the extent of holding that he was the person who controlled the selection of the matter that was published in the newspaper. But at the same time, this presumption contained in Section 7 is a rebuttable presumption and it will be deemed as sufficient evidence unless the contrary is proved. Therefore, it is clear that even if a person''s name is printed as Editor in the newspaper, he can still show that he was not really the Editor and had no control over the selection of the matter that was published in the newspaper. ...

There is no statutory immunity against Managing Editor Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. ....

....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, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can stilt allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption u/s 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.

(Emphasis supplied)

Neither in K.A. Abraham''s case (supra) nor in anyone of the connected cases, the ''Editor'' had come forward to admit that he was the person responsible for selecting the allegedly defamatory matter published. It was against this backdrop that the Apex Court declined to quash the proceedings against the Chief Editor, Resident Editor or Managing Editor, while observing that-

If the complaint is allowed to proceed only against the ''Editor'' whose name is printed in the newspaper against whom there is a statutory presumption u/s 7 of the Act, and in case such ''Editor'' succeeds in proving that he was not the ''Editor'' having control over the selection of the alleged libelous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprit.

However, in the instant case, there is no occasion to make such a finding in view of the fact that the trial of the Editor is yet to be commenced. Further, the inquiry preceding issuance of process did not reflect any prima facie involvement of anyone of the petitioners in the offence and this is the most significant aspect of matter. It is well-settled that before proceeding to issue process, the Magistrate has to take all relevant facts and circumstances into consideration lest it should be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly (See. Punjab National Bank and others Vs. Surendra Prasad Sinha,

For these reasons, even though, the complaint as against the petitioners, that ought to have been dismissed u/s 203 of the Code, can not be quashed under the inherent powers simply because none of them was the ''Editor'' of the Newspaper yet, corresponding part of the order directing issuance of process for the offence is liable to be set aside.

Accordingly, the order dated 18.9.2008, so far it concerns the petitioners, is hereby set aside with the observation that nothing contained herein shall preclude the Magistrate from proceeding against anyone of the petitioners, u/s 319 of the Code, if, from the evidence adduced during trial of the Editor namely Bharat Saxena, his complicity in selection and publication of the defamatory news item is established. The petition stands allowed to the extent indicated above.