Y.S.Bharathi Reddy, Hyd., vs State Of Ap., Rep Pp And Anr.,
2022 Latest Caselaw 5081 AP

     THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

        CRIMINAL PETITION NOs.3870 OF 2015 and
                     5093 of 2015

COMMON ORDER :

       These Criminal Petitions are filed to quash the

proceedings in C.C. No.770 of 2014 on the file of the IV

Additional Chief Metropolitan Magistrate, Visakhapatnam,

registered for the offences punishable under Sections 499

and 500 of the Indian Penal Code, 1860 (for short, ‗IPC').

The petitioner in Criminal Petition No.3870 of 2015 is

arrayed as A.1, and the petitioner in Criminal Petition

No.5093 of 2015 is arrayed as A.4, in the said Calendar

Case.


2.     A private complaint has been filed by 2nd respondent/

complainant against the petitioners herein and others

before the learned Magistrate. The allegations, in brief, in

the said private complaint may be stated as follows:

(a) 2nd respondent/complainant is a reputed politician

in Andhra Pradesh and he was elected to the Andhra

Pradesh Legislative Assembly several times from

Narsipatnam constituency in Visakhapatnam district. He

is also a Member of Lok Sabha once from Anakapalli

constituency in Visakhapatnam district. YSR Congress

Party leaders requested him to join in their party, but he

refused the same, and ever since, all the accused bore

grudge against him and published false news in Sakshi

news paper several times.

(b) Petitioner/A.1 is the Managing Director of M/s.

Jagathi Publications Limited and also wife of Y.S.Jagan

Mohan Reddy, who is President of YSR Congress Party. A.2

is Editor, A.3 is Bureau Chief and the petitioner/A.4 is

Editorial Director respectively of the news paper. All the

accused conspired together to defame 2nd respondent/

complainant and published false news against him.

(c) On 08.03.2013, the accused are alleged to have

published a false news item in first page of Sakshi news

paper, Visakhapatnam local edition, by mentioning

"అయయన్నచేతివాటం"దేశం"ఇరకాటం" in Telugu. Again, on 11.3.2013

also, they published another item in page no.2 of local

edition "కబ్జా దారులుతో చేతులు కలిపందుకు అయయన్న సిదధపడ్ాారు ", which,

on the face of itself, is offensive, obnoxious and smacks of

the underlying malice and mischief intended by all the

accused so as to tarnish the image and reputation of 2nd

respondent / complainant and other MLAs of Telugu

Desam Party and cause embarrassment for them among

the public. The entire news item was based on mere

conjectures and surmises and in utter disregard to the

standards of norms and ethics and abuse of freedom of

speech and expression. It is further alleged that the said

news item does not carry a fair

report of facts and it rather carries a mal-intention on all

the accused to mud-sling on 2nd respondent/ complainant.

(d) The accused published false allegations like "తన్ుకు

క ంత భూమి ఇసే ఆ వివాదం జోలికి తమ పార్టీ ర్ాదంటృ " and also

commenting that the local people expressed that 2nd

respondent/complainant demanded some vacant place

from land grabbers and trying to collude with the land

grabbers, which is absolutely baseless and there is no iota

of truth.

(e) From the date of publication of the above news

item in the news paper, 2nd respondent/complainant had to

face embarrassing situation. Whenever he was going to

public places such as party meetings, etc., he had to hear

disparaging remarks from the passers-by. The news item

was designedly and calculatedly published with the

underlying mischief of harassing him, which all the

accused succeeded by damaging his reputation and image

by publishing the wrong and false news item, which facts

are far from truth. The news item caused immeasurable

mental as well as physical agonies to him and lowered

down his reputation amongst the acquaintances, friends,

general public and before the other leaders. L.Ws.2 to 5-

K.Tata Rao, A.Appala Naidu, L.Somi Naidu and G.Chandu,

who witnessed and readers of the news paper got

astonished, telephoned to him and informed about the false

news against him, and to draw attention of maximum

readers, the accused repeatedly published false allegations

against him to create a suspicion on his character.

(f) The cumulative direct effect of the said acts of

publication of news by distortion of facts, as mentioned

above, individually as well as jointly by all the accused, was

to ruin his reputation and obliterate all the accused. The

entire publication with the statements of A.2 to A.4 with

false comment is highly defamatory, libelous and directly

amid at him to tarnish his image in public. He was deeply

hurt and perturbed by the malicious news published in the

news paper and suffered much mental agony and loss of

prestige.

3. On 21.11.2014, the learned Magistrate passed an

order in DDR No.6179/2013, taking cognizance against A.1

to A.4 for the offences punishable under Sections 499 and

500 IPC. The Order reads thus:

―The statements of Pw-1 to Pw-3 recorded under section 202 Cr.P.C. enquiry. The documents and the statements make out the prima facie case against A1 to A4. The statements of Pw-1 to Pw-3 coupled with allegations set out in the complaint disclose the commission of offence. The material brought on the record reasonably connected with the accused. Therefore, Cognizance taken against A1 to A4 for the offence punishable u-sec. 499 and 500 IPC. Issue summons to the A1 to A4 by 09-01-2015.‖

4. On such issuance of summons, petitioners herein/A.1

and A.4 filed the present quash petitions stating that A.1

has been wrongly shown as the Managing Director of M/s.

Jagathi Publications Limited, but, in fact, she is acting as a

Honorary Non-Executive Chairperson of M/s. Jagathi

Publications Limited, which publishes Sakshi daily

newspaper. The learned counsel for the petitioners

contended that the learned Magistrate, while taking

cognizance, ought to have taken into consideration the

contents of the complaint; that the complaint has been

apparently filed with a mala fide intention for wrecking

vengeance against the petitioners and with a view to spite

them due to political rivalry with husband of

petitioner/A.1.

He further submitted that the general procedure is

that the news collected by the reporters are sent to the

office and it is the News Editor who deals with such news

item and he is the one who takes a decision to publish it in

the newspaper based on the veracity of the same. He

further contended that the alleged defamatory publication

dated 08.03.2013 and 11.03.2013 in the daily newspaper is

published in good faith and in the interest of general

public.

5. On the other hand, learned counsel for 2nd

respondent/complainant contended that on a reading of

the entire complaint goes to show that there are disputed

questions of fact which have to be decided during the

course of trial. He fairly conceded that petitioner/A.1 is not

the Managing Director of M/s. Jagathi Publications

Limited, but she is Honorary Non-Executive Chairperson

and she is wife of party President of YSR Congress Party.

It is his contention that whether she is aware of the

publication or the publication has been made at the

instance of the petitioners, is purely a question of fact and

the same has to be decided during the course of trial. In

support of his contention, he relied on the decisions in

Mohd. Abdulla Khan v. Prakash K.1 and Girish Kumar

Suneja v. Central Bureau of Investigation2.

6. This Court perused the articles that were published in

the newspaper and other relevant material placed before

the Court. The alleged newspaper publications are as

under:

(2018) 1 SCC 615

(2017) 14 SCC 809

7. There cannot be any dispute that inherent powers of

this Court under Section 482 CrPC can be exercised to

prevent abuse of process of Court or to give effect to any order

under the code or to secure the ends of justice. This Court is

also conscious of the fact that the power of quashing a

criminal proceeding should be exercised very sparingly and

with circumspection and that too in the rarest of rare cases

and that the Court would not be justified in embarking upon

an enquiry as to the reliability or genuineness or otherwise of

the allegations made in the report. On this aspect, it is

pertinent to refer to the judgment of the Hon'ble Apex court in

State of Haryana Vs. Ch.Bhajanlal and ors.3, wherein the

Apex Court held :

―In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their

AIR 1992 SC 604

face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code; (3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code;

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.‖

8. In Girish Kumar Suneja v. Central Bureau of

Investigation (2 supra), relied on by the learned counsel for

2nd respondent, it is held thus: (paragraphs 21 and 24).

"21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind--an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.

24. The second reason why Amar Nath [Amar Nath v. State of Haryana, (1977) 4 SCC 137 : 1977 SCC (Cri) 585] is important is that it invokes the principle, in the context of criminal law, that what cannot be done directly cannot be done indirectly. Therefore, when Section 397(2) CrPC prohibits interference in respect of interlocutory orders, Section 482 CrPC cannot be availed of to achieve the same objective. In other words, since Section 397(2) CrPC prohibits interference with interlocutory orders, it would not be permissible to resort to Section 482

CrPC to set aside an interlocutory order. This is what this Court held : (SCC p. 140, para 3) ―3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.‖‖

In the case on hand, as the order dated 21.11.2014

passed by the learned Magistrate is an intermediary order,

the Criminal Petition is maintainable challenging the

proceedings arising out of the said order.

9. The contention of the learned counsel for the

petitioners that the petitioner/A.1 is not the Managing

Director of M/s. Jagathi Publications Private Limited, as

alleged in the complaint, but she is Honorary Non-

Executive Chairperson of Board of Directors of the said

company. On a perusal of the material that has been

produced by the learned counsel for the petitioners goes to

show that the petitioner/A.1 is not the Managing Director

of M/s. Jagathi Publications Limited. Admittedly, she is

acting as a Honorary Non-Executive Chairperson of Board

of Directors of M/s. Jagati Publications Limited.

Petitioner/A.4 is the Editorial Director of the newspaper.

The learned Magistrate, while taking cognizance, should

have applied his mind to verify whether the petitioner/A.1

is the Managing Director or Honorary Non-Executive

Chairperson of Board of Directors of M/s. Jagathi

Publications Limited. Going by the order dated

21.11.2014 passed by the learned Magistrate goes to show

that in a routine manner, the learned Magistrate passed

the order taking cognizance stating that the documents and

the statements make out a prima facie case as against the

A.1 to A.4 and the statements of PWs 1 to 3 coupled with

the allegations set out in the complaint disclose the

commission of offence, and the material brought on record

reasonably connected with the accused. Either the

Managing Director or the Honorary Non-Executive

Chairperson is not concerned with the preparation,

selection, editing or publication of Sakshi telugu daily

newspaper. As such, with the above background of the

case, it has to be decided whether he/she can be

prosecuted for the offence punishable under Section 500 or

501 IPC.

10. On this aspect, it is pertinent to mention relevant

provisions of the Press and Registration of Books Act, 1867

(for short, ‗the PRB Act, 1867'). Section 1 (1) of the PRB

Act, 1867 defines ‗Editor', which reads- ‗editor' means the

person who controls the selection of the matter that is

published in a newspaper.

11. Section 5 of the PRB Act, 1867 deals with ‗Rules as to

publication of newspapers. Section 5 (1) of the Act reads as

under:

―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.‖

A reading of Section 5 (1) of the PRB Act, 1867 makes

it clear that every copy of every newspaper shall contain

names of the owner and editor thereof printed on such copy

and also the date of its publication.

Sub-section (2) of Section 5 of the PRB Act, 1867 lays

down that the printer and the publisher of every newspaper

shall appear in person or by agent authorized in this behalf

in accordance with rules made 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 the declaration

stated therein.

12. Section 7 of the PRB Act, 1867 :

―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, 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 declaration, or printed on such newspaper, as the case may be, that the said person was printer or publisher, or printer and publisher (according to 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, or the editor of every portion of that issue of the newspaper of which a copy is produced.‖

A perusal of Section 7 of the PRB Act, 1867 gives a

presumption as to awareness of the contents of the

newspapers and it is a rebuttable presumption.

13. Section 8A of the PRB Act, 1867 deals with ‗Person

whose name has been incorrectly published as editor may

make a declaration before a Magistrate'. According to the

said Section, 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.

14. In I.Venkata Rao v. Afghan Khasim Sab4, this Court,

while discussing scope of Section 7 of the PRB Act, 1867,

held that the presumption under Section 7 of the Act can

be raised only in respect of the Editor of the newspaper

concerned. Therefore, unless it is shown that the

petitioners herein are Editors of the newspaper on the

relevant date, no criminal liability for publication of alleged

defamatory material can be fastened on them.

2000 (2) ALD (Cri) 758 (AP)

15. If a person complains that he has been defamed as a

member of a class, he must satisfy the Court that the

imputation is against him personally and he is the person

aimed at, before he can maintain a prosecution for

defamation. In short, the grievance of the complainant

should not merely be the one shared by every member of an

organised society. Where, therefore, the editor of a paper

writes an editorial which is highly defamatory of the

spiritual head of a certain community, an individual of that

community is not an aggrieved person within the meaning

of Section 198 CrPC. The mere fact that the feelings of a

defamatory statement made against his religious head,

affords him no ground under the law to prosecute the

accused for defamation. Thus, the action for defamation

would not lie at the instance of unincorporated collection of

individuals such as a political party or member's club.

Such groups are merely classes of persons and there can

be no libel on a class. In ―Eastwood v. Halmes, (1858) 1 F.

& F. 347,‖ Willes, J. Said: "If a man wrote that all lawyers

were thieves, no particular lawyer could sue him unless

there is something to point to the particular individual

which there is not here." The statement that there is no

libel on a class is really governed by the rule that the

plaintiff must prove that the libel refers to him.

16. In Mohd Abdulla Khan v. Prakash K. (1 supra), relied

on by the learned counsel for 2nd respondent, it is held

thus: (paragraphs 10 and 20)

"10. An analysis of the above reveals that to constitute an offence of defamation it requires a person to make some imputation concerning any other person;

(i) Such imputation must be made either

(a) With intention, or

(b) Knowledge, or

(c) Having a reason to believe

that such an imputation will harm the reputation of the person against whom the imputation is made.

(ii) Imputation could be, by

(a) Words, either spoken or written, or

(b) By making signs, or

(c) Visible representations

(iii) Imputation could be either made or published.

The difference between making of an imputation and publishing the same is:

If ‗X' tells ‗Y' that ‗Y' is a criminal -- ‗X' makes an imputation.

If ‗X' tells ‗Z' that ‗Y' is a criminal -- ‗X' publishes the imputation.

The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made. [Khima Nand v. Emperor, 1936 SCC OnLine All 307 : 1937 Cri LJ 806; Amar Singh v. K.S. Badalia, 1964 SCC OnLine Pat 186 : (1965) 2 Cri LJ 693]

17. Going by the judgments relied on by the learned

counsel for 2nd respondent, even to take cognizance, there

must be some material to establish that apart from the

Editor, the alleged defamatory news item has been selected

and published by other than the Editor.

18. A perusal of the entire complaint goes to show that an

omnibus accusation has been made against all the accused

that all of them published the alleged articles, which are

defamatory, according to 2nd respondent/complainant.

Apart from the said accusation, there is no specific

accusation that the person other than the Editor, has

selected the news item and the same was published. Mere

clever drafting of a complaint by an Advocate by using legal

skills so as to enable the Court to take cognizance is

nothing but illegal and the same is arbitrary.

19. (a) In Ravindranatha Bajpe v. Mangalore Special

Economic Zone Limited & others,5 it is held thus:

(paragraphs 16, 17, 24, 27 and 28)

―16. It is further submitted that at the stage of summoning the accused, what is required to be considered is whether a prima facie case is made out on the basis of the statement of the complainant on oath and the material produced at this stage and the detailed examination on merits is not required.

17. It is further submitted by the learned counsel appearing on behalf of the complainant that even otherwise there was a specific allegation in the complaint that accused nos. 1 to 8 conspired with

2021 SCC Online SC 806

the co-accused to lay the pipeline under the property of the complainant and therefore at the stage of issuing process/summons, the revisional court could not have interfered with the order passed by the learned Magistrate summoning the accused. It is submitted that being the administrators of the companies, all the executives are vicariously liable.

24. In the case of Sunil Bharti Mittal (supra), it is observed by this Court in paragraphs 42 to 44 as under:

"(iii) Circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person

42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of ―alter ego‖, was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.‖

27. As held by this Court in the case of India Infoline Limited (supra), in the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them. Looking to the averments and the allegations in the complaint, there are no specific allegations and/or averments with respect to role played by them in their capacity as Chairman,

Managing Director, Executive Director, Deputy General Manager and Planner & Executor. Merely because they are Chairman, Managing Director/Executive Director and/or Deputy General Manager and/or Planner/Supervisor of A1 & A6, without any specific role attributed and the role played by them in their capacity, they cannot be arrayed as an accused, more particularly they cannot be held vicariously liable for the offences committed by A1 & A6.

  28. From     the   order       passed    by   the    learned
Magistrate    issuing      the      process     against    the

respondents herein - accused nos. 1 to 8, there does not appear that the learned Magistrate has recorded his satisfaction about a prima facie case against respondent nos. 2 to 5 and 7 & 8. Merely because respondent Nos. 2 to 5 and 7 & 8 are the Chairman/Managing Director/Executive Director/ Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless, as observed hereinabove, there are specific allegations and averments against them with respect to their individual role. Under the circumstances, the High Court has rightly dismissed the revision applications and has rightly confirmed the order passed by the learned Sessions Court quashing and setting aside the order passed by the learned Magistrate issuing process against respondent nos. 1 to 8 herein - original accused nos. 1 to 8 for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC.‖

(b) In Vivek Goenka, the Chairman and Managing

Director of Indian Express Newspapers v. Rajabhau

Damodar Raikar6, it is held thus : (paragraphs 8 and 9)

"8. The Apex Court in the case of K.M. Mathew (II) while considering the scope and purport of section 7 has observed that : --

"Under Section 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. Section 7 only enables the court to draw a presumption that the person whose name was printed as Editor was the Editor of such newspaper, if the publication produced in the court shows to that effect."

9. The Apex Court while observing that there is no statutory immunity against Managing Editor, Resident

2016 SCC Online Bom 5224

Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control has held that : --

"The provisions contained in the Act clearly go to show 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, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 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."

(c) In Haji C.H. Mohammad Koya v. T.K.S.M.A.

Muthukoya7, it is held thus: (paragraph 16)

"6. In the case of State of Maharashtra v. Dr R.B. Chowdhary [(1967) 3 SCR 708, 710] this Court observed as follows:

―The term ‗editor' is defined in the Act to mean a person who controls the selection of the matter that is published in a newspaper. Where there is mentioned an editor as a person who is responsible for selection of the material Section 7 raises presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of

(1979) 2 SCC 8

Madane admittedly was printed as the editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper .... In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question.‖ This case, therefore, clearly holds that where a person is not shown in the paper to be its editor no such presumption under Section 7 of the Press Act can be drawn but it must be held that he has no concern with the publishing of the article.‖

(d) In Kalanithi Maran v. A.Rathinaraj8, it is held thus:

(paragraph 11)

"11. As already pointed out, in this case, there is no averment in the complaint that the petitioner being Managing Director had any intention or knowledge not only about the alleged imputation, but also about the telecast. The petitioner is not connected with the telecast and he cannot be vicariously held liable, which is not permissible in criminal law unless specifically provided by the Statute. Therefore, the Judicial Magistrate is not correct in taking cognizance of the offence as against the petitioner. Therefore, this Court is of

2017 SCC Online Mad 9723

the view that it is a fit case to invoke the inherent jurisdiction of this Court under Section 482 of Cr.P.C. and quash the proceedings as the offence alleged is not prima facie made out as against the petitioner.‖

20. Going by the provisions of the PRB Act, 1867, it would

clearly go to show that there can be a presumption as

against the Editor whose name is printed in the newspaper

to the effect that he is the Editor of such publication and is

responsible for selection of the matter for publication. A

similar presumption cannot be drawn as against the Chief

Editor, Managing Director or Resident Editor. Though the

law laid down by the Hon'ble Apex Court in K.M. Mathew v.

K.A. Abraham (AIR 2002 SC 2989) supports the case of 2nd

respondent, in view of the later judgment in Jacob Mathew

v. Adangam Purath Kallada Gangadharan Nair‟s case,

except the Editor, no other person is liable for prosecution

prima facie. (see Order dated 05.01.2018 of the common

High Court in Criminal Petition No.11861 of 2017 in

V.Radhakrishna & others v. Alla Rama Krishna Reddy &

others). My learned brother has dealt with the subject

comprehensively by referring to, all other judgments.

21. The term ‗editor' is defined in the Act to mean a person

who controls the selection of the matter that is published in a

newspaper. Where there is mentioned an editor as a person

who is responsible for selection of the material Section 7

raises presumption in respect of such a person. The name of

that person has to be printed on the copy of the newspaper.

In the present case, the names of petitioners admittedly were

not printed as the Editor of the newspaper which contained

the alleged defamatory article. In the circumstances, not only

the presumption cannot be drawn against the others who had

not declared themselves as Editors of the newspaper but it is

also fair to leave them out because they had no concern with

the publishing of the article in question. Where a person is

not shown in the paper to be its Editor, no such presumption

under Section 7 of the PRB Act, 1867 can be drawn but it

must be held that he has no concern with the publishing of

the article.

22. Coming to the facts of the present case, petitioner/A.1

is Honorary Non-Executive Chairperson, and petitioner/A.4

is Editorial Director, of M/s. Jagathi Publications Limited,

which publishes Sakshi daily newspaper. An omnibus

accusation has been made against them in the complaint

that all the accused published the alleged articles in Sakshi

daily newspaper. It is an admitted fact that Editor alone

will select the publish news items, as defined under Section

1 of the PRB Act, 1867, and the Act also does not recognize

any other legal entity except the Editor of the newspapers

insofar as selection of news item is concerned. On this

aspect, it is pertinent to refer to a decision of the Hon'ble

Apex Court in T.K.S.M.A. Muthukoya v. Haji C.H.

Mohammad Koya9, wherein the Hon'ble Supreme Court

held that the PRB Act, 1867 does not recognize any other

legal entity except the Editor insofar as the responsibility of

that office is concerned, and that the term ‗Editor' means a

person who controls the selection of the matter that is

published in a newspaper, and where a person's name is

printed in the newspaper as its Editor, it raises a

rebuttable presumption only against the Editor.

Paragraph No.34 of the said judgment reads thus:

"34. From the facts established above, it is manifest that the petitioner has miserably failed to prove either that the appellant was the editor of the paper or that he was performing the functions, duties or shouldering the responsibilities of the editor. It is obvious that a presumption under Section 7 of the Press Act could be drawn only if the person concerned was an editor within the meaning of Section 1 of the Press Act. Where however a person does not fulfil the conditions of Section 1 of the Press Act and does not perform the functions of an editor whatever may be his description or designation, the provisions of the Press Act would have no application. ...‖

23. It is also pertinent to refer to a decisions -

AIR 1979 SC 154

(a) in K.M.Mathew v. State of Kerala,10 wherein the

Hon'ble Supreme Court held thus: (paragraphs 9 and 10).

"9. 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 under Section 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 under Section 7 is only against the person whose name is printed as ‗Editor' as required under Section 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 under Section 7 of the Act.

[See State of Maharashtra v. Dr R.B.

Chowdhary [(1967) 3 SCR 708 : AIR 1968 SC 110 : 1968 Cri LJ 95] ; D.P. Mishra v. Kamal Narain Sharma [(1970) 3 SCC 558 : (1971) 3 SCR 257 : AIR 1971 SC 856] ; Narasingh Charan Mohanty v. Surendra Mohanty [(1974) 3 SCC 680 : (1974) 2 SCR 39 : AIR 1974 SC 47] and Haji C.H.

Mohammad Koya v. T.K.S.M.A. Muthukoya [(1979) 2 SCC 8 : (1979) 1 SCR 664 : AIR 1979 SC 154] .]

AIR 1992 SC 2206

10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor 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 a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside.‖

(b) In Dasari Narayana Rao v. State of Andhra

Pradesh11, it is held thus: (paragraph 14)

―We also find considerable force in the contention urged by Mr. I. Sreerama Murthy that as Chairman of the Company owning the Telugu Daily the petitioner cannot be made to represent the daily unless it can be said that the petitioner was responsible for the publication with the necessary knowledge or reasonable belief in the matter. In Bhagat Singh v. Lachan Singh (4) AIR 1968 Cal 296 the question regarding the liability of the owner of a newspaper for publication of a defamatory statement in the newspaper was considered. It was held that the owner in order to liable under Section 500 IPC should have direct responsibility for the publication of the defamatory statement and he must also have the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the

1987 SCC OnLine AP 185

person concerned. It was observed that the owner's liability will be attracted provided it can be shown that he was responsible for the publication with the necessary interest, knowledge or reasonable belief in the matter. In the State of Maharastra v. R.B. Chowdari (5) AIR 1985 SC 110, the Supreme Court held that persons who had no concern with the publishing of the article in the newspaper ought to be discharged when there is an editor who is responsible for the publication. In S. Nihal Singh v. Arjan Das (6) 1983 Cri LJ 777 the same question regarding the owner's liability arose. In that case, Ramanath Geonka' Chairman of the Express Newspapers (Bombay) Private Limited owning the newspaper was sought to be proceeded against the Chair-man of the company owning the newspaper for publication of defamatory article. The Delhi High Court held that the Chairman of the company could be held liable for the publication of the offending news item only if it is shows that he was somehow concerned with the publication of the defamatory news item. The court observed that the Chairman cannot be asked to answer the charge of defamation merely because he happened to be the chairman of the company owning the newspaper without there being any further evidence regarding his participation in the actual management and administration of the affairs of the company. We are inclined to agree with the view expressed by the learned single Judge in Udayam Telugu Daily case (No. 2 supra) that unless there is a specific allegation against the petitioner no presumption can be drawn that by reason of his being a chairman of the company owning the newspaper he was responsible for the publication of defamatory article in the newspaper. We do not think that the principle enunciated by the Supreme Court in J.P. Sharma v. Vinod Kumar

Jain (No. 3 supra) has any application in the present case because there is no prima facie material in the complaint to indicate the involvement and the participation of the Chairman in the publication of the alleged defamatory statements in the Telugu Daily. Apart from vague statements there is nothing specific against the petitioner. We are unable to agree with the learned Advocate-General that even though a complaint does not contain any specific charge the trial could still proceed.‖

(c) In Prabhu Chawla v. A.U. Sheriff (Karnataka)12, the

High Court of Karnataka held thus: (paragraph 19)

"19. In the absence of positive averments against the petitioners 1 to 3 who are described as Executive Editor, Managing Editor and Resident Editor and in the absence of presumption available under Section 7 of the Act against them, the learned Magistrate could not have ordered process for the alleged offence under Section 500, IPC. To ask the Executive Editor, Managing Editor and Resident Editor to undergo the trial because of issuing process against them would be oppressive.‖

24. On the contrary, the complaint was drafted in such a

way to attach responsibility to petitioners/A.1 and A.4 as if

they are playing role of an Editor. Apart from the same,

there is absolutely no documentary evidence to show that

petitioners/A1 and A.4 participated in selecting the news

item. Merely saying that the petitioners along with others

have published the news articles, there is no other material

to connect the petitioners to the publication of the said

1995k Cr.L.J. 1922 (Karnataka)

articles. In such circumstances, this Court feels that it is

difficult to hold that the petitioners are liable for such

prosecution being the Honorary Non-Executive

Chairperson, and Editorial Director, of M/s. Jagathi

Publications Limited, which publishes Sakshi daily

newspaper.

25. The High Court of Gauhati in Sri Jayanta Baruah and

Sadhin Printers represented by the Proprietor Sri Jayanta

Baruah v. Sri Dilip Baruah (2014 Cri.L.J. 3349 (Gau)) noted

the contentions of the counsel for the petitioners in

paragraph No.7 as to when the Chief Editor, Executive

Director and the printer and publisher, against whom

presumption can be drawn, are named as accused persons,

taking of cognizance against the present petitioners in

absence of any averments in the complaint petition about

their knowledge or any role in the publication of the said

news item, is not sustainable in law and held thus:

―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.

16. 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 is 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.‖

In view of the law declared by the High Court of

Gauhati in Sri Jayanta Baruah and Sadhin Printers

represented by the Proprietor Sri Jayanta Baruah v. Sri Dilip

Baruah (referred supra), the petitioners, being the Honorary

Non-Executive Chairperson and Editorial Director are not

liable for prosecution as they were not the persons who

selected the news item. No specific allegation is made

against them and the allegations in the complaint prima

facie are not sufficient to conclude that they are the

persons responsible for such publication of alleged

imputation against 2nd respondent, amounting to

defamation. No prima facie material is produced to

substantiate the omnibus accusations leveled against the

petitioners. A reporter, after collecting the news, gives it

to the Editor, and only the Editor will select and publish

news item, and hence, at best, liability can be attached

against the Editor of the newspaper whose name is printed

in the declaration as required under Section 5 of the PRB

Act, 1867. Therefore, the Editor alone can be proceeded

against for the offence punishable under Section 500 or

501 IPC.

26. The essential ingredients to constitute an offence

under Section 499 IPC are as under:

"10. A person makes some imputation concerning any other person;

(i) Such imputation must be made either

(a) With intention, or

(b) Knowledge, or

(c) Having a reason to believe

that such an imputation will harm the reputation of the person against whom the imputation is made.

(ii) Imputation could be, by

(a) Words, either spoken or written, or

(b) By making signs, or

(c) Visible representations

(iii) Imputation could be either made or published.‖

The essence of publication in the context of Section

499 IPC is the communication of defamatory imputation to

persons other than the persons against whom the

imputation is made.

27. In Subramanian Swamy v. Union of India, Ministry of

Law and others13, it is held thus: (paragraph No.168)

―For the aforesaid purpose, it is imperative to analyse in detail what constitutes the offence of ‗defamation' as provided under Section 499 IPC. To constitute the offence, there has to be imputation and it must have been made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to

(2016) 7 SCC 221

the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence. The complainant has to show that the accused had intended or known or had reason to believe that the imputation made by him would harm the reputation of the complainant. The criminal offence emphasises on the intention or harm. Section 44 IPC defines ‗injury'. It denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. Thus, the word ‗injury' encapsulates harm caused to the reputation of any person. It also takes into account the harm caused to a person's body and mind. Section 499 provides for harm caused to the reputation of a person, that is, the complainant.‖

28. In Jeffrey J. Diermeier v. State of W.B.,14 the Hon'ble

Apex Court deliberated on the aspect as to what constitutes

defamation under Section 499 IPC. In that context, it is

held that there must be an imputation and such

imputation must have been made with the intention of

harming or knowing or having reason to believe that it will

harm the reputation of the person about whom it is made.

In essence, the offence of defamation is the harm caused to

the reputation of a person. It would be sufficient to show

that the accused intended or knew or had reason to believe

that the imputation made by him would harm the

reputation of the complainant, irrespective of whether the

complainant actually suffered directly or indirectly from the

imputation alleged.

(2010) 6 SCC 243

29. On a meticulous analysis of the Exceptions, the first

exception stipulates that it is not defamation to impute

anything which is true concerning any person, if it be for

the public good that the imputation should be made or

published. ‗Public good' has to be treated to be a fact. In

Chaman Lal v. State of Punjab {(1970) 1 SCC 590}, the

Hon'ble Apex Court held that in order to come within the

first exception to Section 499 IPC, it has to be established

that what has been imputed concerning the respondent is

true and the publication of the imputation is for the public

good. The onus of proving these two ingredients viz. truth

of the imputation and the publication of the imputation for

the public good, is on the accused.

30. In Arundhati Roy, In re (2002) 3 SCC 343], the Hon'ble

Apex Court, referring to second exception, observed that

even a person claiming the benefit of the second exception

to Section 499 IPC, is required to show that the opinion

expressed by him was in good faith which related to the

conduct of a public servant in the discharge of his public

functions or respecting his character so far as his character

appears in that conduct. The third exception states about

conduct of any person touching any public question and

stipulates that it is not defamation to express in good faith

any opinion whatever respecting the conduct of any person

touching any public question and respecting his character,

so far as his character appears in that conduct. The said

Exception uses the words ―good faith‖ and particularises

conduct of any person relating to any public question and

the Exception, as is perceptible, gives stress on good faith.

The third exception comes into play when some defamatory

remark is made in good faith as held in Sahib Singh

Mehra Sahib Singh Mehra v. State of U.P., AIR 1965 SC

1451 : (1965) 2 Cri LJ 434 : (1965) 2 SCR 823]. The Hon'ble

Court has clarified that if defamatory remarks are made

after due care and attention, it will be regarded as made in

good faith. In the said case, the Hon'ble Court also adverted

to the ninth exception which gives protection to imputation

made in good faith for the protection of the interest of the

person making it or of any other person or for the public

good.

31. It is essential that exceptions to Section 499 IPC are

required to be considered at the time of summoning of the

accused, but as the same is not conceived in the provision,

it is unconstitutional. It is settled position of law that those

who plead exception, must prove it. It has been laid down

in M.A. Rumugam v. Kittu {(2009) 1 SCC 101} that for the

purpose of bringing any case within the purview of the

Eighth and the Ninth Exceptions appended to Section 499

IPC, it is necessary to plead the exception to prove it, and

he has to prove good faith for the purpose of protection of

the interests of the person making it or any other person or

for the public good. The said proposition would definitely

apply to any Exception who wants to have the benefit of the

same. Therefore, argument that if the said Exception

should be taken into consideration at the time of issuing

summons, it would be contrary to the established criminal

jurisprudence and therefore the stand that it cannot be

taken into consideration makes the provision

unreasonable, is absolutely an unsustainable one and in a

way, a mercurial one.

32. In the order issuing summons, the learned Magistrate

has to record his satisfaction about a prima facie case

against all the accused and the role played by them in their

respective capacities which is sine qua non for initiating

criminal proceedings against them. Looking to the

averments and the allegations in the complaint, there are

no specific allegations and/or averments with respect to

role played by them in their respective capacities. Merely

because the petitioner/A.1 is the wife of the President of

YSR Congress Party, she cannot be made liable unless it is

shown that she had any intention on her part to publish

the article. Intention is an essential ingredient of the

offences alleged. In the absence of any averment in

respect of any intention or conspiracy, proceedings against

the petitioners would be oppressive. Merely because they

are holding the respective positions in the company,

without any specific role attributed and the role played by

them in their capacity, they cannot be arrayed as accused,

more particularly they cannot be held vicariously liable.

33. The motive that is attributed against all the accused

is general and vague. 2nd respondent/complainant relied

upon the presumption under Section 7 of the PRB Act,

1867. Section 7 of the Act has no applicability for a person

who is simply named as Honorary Non-Executive

Chairperson or Editorial Director, and the same is available

only against a person whose name is printed as ‗Editor' as

required under Section 5 (1) of the PRB Act, 1867. Section

7 of the Act raises a presumption in respect of a person

who is named as ‗Editor' and printed as such on every copy

of the newspaper. The Act does not recognize any other

legal entity for raising the presumption, and even if the

name of the Chief Editor is printed in the newspaper, there

is no presumption against him under Section 7 of the Act.

[See State of Maharashtra v. Dr R.B. Chowdhary [(1967) 3 SCR 708 : AIR 1968 SC 110 : 1968 Cri LJ 95] ; D.P. Mishra v. Kamal Narain Sharma [(1970) 3 SCC 558 : (1971) 3 SCR 257 : AIR 1971 SC 856] ; Narasingh Charan Mohanty v. Surendra Mohanty [(1974) 3 SCC 680 :

34. Apparently, the order of taking cognizance does not

disclose application of mind to the facts of the case by the

learned Magistrate. It is apparent that the learned

Magistrate did not verify the material in support of the

accusations made against the petitioners/A.1 and A.4. In

order to take cognizance of the offence by the Magistrate as

against the petitioners herein, there must be a positive

averments in the complaint with regard to knowledge and

conspiracy. The complaint does not disclose any of those

things. From the order passed by the learned Magistrate

issuing the process against the petitioners/A.1 and A.4, there

does not appear that the learned Magistrate has recorded his

satisfaction about a prima facie case against them. Merely

because the petitioners/A.1 and A.4 are holding the positions

in the company, automatically they cannot be held vicariously

liable, unless, as observed hereinabove, there are specific

allegations and averments against them with respect to their

individual role. Apart from the same, there is no material

as against petitioners/A.1 and A.4, who are Honorary Non-

Executive Chairperson, and Editorial Director, of M/s.

Jagathi Publications Limited. The Reporter is not before

this Court. He did not resort in filing any application under

Section 482 CrPC for quashment. A perusal of the order

passed by the learned Magistrate shows that the order has

been passed in a routine and mechanical manner, issuing

summons to the petitioners/A.1 and A.4.

35. The allegations made in the complaint against the

petitioners/A.1 and A.4, on their face value, would not

constitute any offence and the case of petitioners/A.1 and

A.4 would squarely fall under guidelines Nos. 1 to 3 of the

guidelines in State of Haryana Vs. Ch.Bhajanlal and ors

(supra), continuation of the impugned proceedings against

them is nothing abuse of process of Court, and this Court

deems it fit, under Section 482 CrPC, to quash the

proceedings as against the petitioners/A.1 and A.4.

36. Accordingly, the Criminal Petitions are allowed. The

proceedings in C.C. No.770 of 2014 on the file of the IV

Additional Chief Metropolitan Magistrate, Visakhapatnam

are quashed insofar as petitioners/A.1 and A.4 are

concerned.

Miscellaneous Petitions, if any, pending in the

Criminal Petitions, shall stand closed.

___________________________________ JUSTICE K. SREENIVASA REDDY 10.08.2022.

DRK/GR

THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

COMMON ORDER IN

CRIMINAL PETITION NOs.3780 OF 2015 and 5093 of 2015

.08.2022

DRK