Ramakumar vs K.M. Mathew and Another

Padmanabhan, J.—C.C. No. 496 of 1985 on the file of the Additional Judicial First Glass Magistrate, Ernakulam was taken to file for an offence punishable u/s 500 read with Section 34 of the Indian Penal Code against two accused on a private complaint filed by the Petitioner. First accused is Shri K.M. Mathew, Chief Editor, Malayala Manorama Daily published from Kottayam. Second accused is Shri Mammen Varghese, Printer and Publisher of the same paper. First accused filed M.P. No. 1896 of 1987 based on a decision of this Court in Mathew v. Nalini 1987 (2) KLT 286 requesting that the proceedings against him may be dropped. The prayer was allowed by order dated 5th December 1987 and the Magistrate ordered the complaint to be proceeded against the second accused alone. The correctness and propriety of that order is under challenge by the complainant.

Mathew''s case 1987 (2) KLT 286 said:

An editor is liable for the material published by reason of Section 7 of the Press and Registration of Books Act, 1867. Editor is defined in Section 1(1) of the Act as the person selecting the material for publication. The definition is not by nomenclature but functional. The Press and Registration of Books 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. In the complaint in this case, there is no averment that the Chief Editor was the person who selected the material for publication or that he was in any manner responsible for its publication. There is a vague assertion in paragraph 16 that the second accused as the Chief Editor and the other accused are chargeable for the offence. The broad assertion is too transparent, to stand scrutiny.

That was a proceeding u/s 482 of the Code of Criminal Procedure to quash the complaint. The complaint was set aside in. that case in exercise of the inherent powers only in so far as it relates to the Chief Editor, for the reasons mentioned above. It has also been stated in the order that in the complaint there was no averment that the Chief Editor, against whom the complaint was quashed, was the person who selected the material for publication or that he was in any manner responsible for its publication. In the light of those facts, it was held that Section 7 of the Press and Registration of Books Act, 1867 read with definition of editor in Section 1(1) thereof cannot implicate the Chief Editor as an offender. That decision cannot be taken as laying down a uniform rule of law that whatever be the allegation in a complaint of defamation against a person, who happens to be the Chief Editor, the complaint cannot proceed against him. If the Chief Editor was made an accused only in that capacity and there is no allegation that he had anything to do with the selection of the matter for publication or that he was in any other manner responsible for publication, it may not be correct to implicate him as an accused.

But in this case, the facts are entirely different and it is admitted by the Magistrate himself in his order. The allegation of the Petitioner in the private complaint is that the first accused is having a definite motive and that the publication was purposely made by him in continuation of various other items of previous conduct. In paragraph 9 of the impugned order the Magistrate said that there were allegations that the first accused was having grudge against the Petitioner. But that allegation was overcome by saying that it is not sufficient for a presumption as to the commission of the offence of defamation by him. Paragraph 10 refers to the role of the first accused in publishing the false news item. Finally in paragraph 12 the Magistrate said that there are averments by the complainant that the first accused caused the news item in question to be published with the deliberate object of lowering his reputation in the estimation of others. Paragraph 14 refers to the allegation of motivation against the first accused. In spite of all these things, finally the Magistrate said that in the absence of an averment that the first accused was the person who selected the material and was responsible for its publication, he cannot be proceeded with on account of the principles laid down in Matkew''s case 1987 (2) KLT 286. I do not think that the approach made by the Magistrate in this respect is correct.

This is a private complaint triable as a summons case coming under Chapter XX of the Code of Criminal Procedure. The Magistrate took cognizance of the offence and issued process to both the accused u/s 204 for the offence u/s 500 read with Section 34 of the Indian Penal Code. Issue of process u/s 204 must be taken as a visible manifestation of the satisfaction that there is sufficient ground for proceeding against the accused. After process is issued on such satisfaction the Magistrate is bound to proceed under Chapter XX when the accused enters appearance pursuant to the process. He will have to state the particulars of the offence and record the plea of the accused. When the accused plead not guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution. Then he will have to hear the accused and take all such evidence produced by the defence. The question of conviction or acquittal will arise only thereafter. Even the provisions of Section 258 of the Code are not applicable for various reasons. Section 258 is a provision to be applied in exceptional cases and it is specifically excluded in cases instituted on complaint.

When a Magistrate takes cognizance of an offence and issues process on the requisite satisfaction, he could exonerate an accused only by any one of the methods allowed by law. The Magistrate has not stated under which provision of law he passed the impugned order. As in a civil case there is no question of necessary, desirable or pro forma parties in a criminal case. Criminal cases, whether instituted on police report, complaint or otherwise could only be against persons accused of offences. When cognizance is taken u/s 190 and process issued u/s 204, exoneration could only be by discharge, acquittal, release or some other method recognised by law. There is no question of dropping a person at any intermediate stage. In a summons case, there is no question of discharging an accused. The three methods of termination of summons case against an accused are by (i) acquittal or conviction; (ii) non-appearance or death of the complainant coming u/s 256; and (iii) withdrawal of the complaint u/s 257. None of these methods have arisen in this case. During an intermediate stage after issue of process there is no provision for dropping the proceedings against an accused as was done by the Magistrate.

This aspect was considered in Balakrishna Panicker v. Thevan 1987 (1) KLT 628. On the basis of that decision also, what the Magistrate has done is an illegality. The order of the Magistrate amounts to acquittal of the first accused without trial and without giving the prosecution an opportunity of establishing the allegations. The Magistrate ought to have complied with the provisions of Chapter XX and the question of acquittal or conviction could have been considered only on the basis of the allegations and the evidence along with the relevant legal provisions. The illegal order requires interference in revision.

Criminal Revision Petition is therefore allowed and the order of the Magistrate is set aside. That means the Magistrate will have to proceed against both the accused. Whether the first accused is entitled to the benefit of the principles laid down in Mathew''s case 1987 (2) KLT 286 is a matter that will still be open to the Magistrate to consider on the merits in the light of the allegations in the complaint and the evidence that is adduced.