Bombay High Court
Viveck Goenka vs Rajabhau Damodar Raikar And Ors on 5 August, 2016
Bench: Anuja Prabhudessai
appln_6710_2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.6710 OF 2005
Mr. Vivek Goenka,
aged 46 years,
The Chairman and Managing
Director of Indian Express
Newspapers (Mumbai) Ltd. having
his office at Express Towers, Nariman
Point, Mumbai 400 021. ...Applicant
Versus
1.Mr. Rajabhau Damodar Raikar
Age 49, Occupation Social Service
R/at 1516, Sadashiv Peth,
Pune - 411 030.
2.Mr. George Verghese
the then Printer and Publisher of
"The Indian Express" Pune edition
residing at Kalpataru Habitat, Lower
Parel, Mumbai- 400 012.
3.Mr. Prakash Kardaley
The then Resident Editor of
"The Indian Express", Pune edition
having his office at 3/11 Aurora
Towers 9A, Moledina Road,
Pune 411 001.
4.Ms. Yogita Pandurang Bankar
Residing at 626, Ghorpadi Peth
Pune 411 042.
5.Mr Pandurang Baburao Bankar
Residing at 626, Ghorpadi Peth
Pune 411 042.
6.State of Maharashtra
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appln_6710_2005
Through the Public Prosecutor
PWD Building, High Court,
...Respondents
Mumbai 400 001.
...
Mr. S.R. Chitnis, Senior Advocate with Mr. Amol Joshi, Suziyan Shaikh,
Tasneem Kantawala i/b Ms Poorvi Kamani for the Applicant.
Mr. Anil V. Anturkar, Senior Advocate with Mr. Amol Gatne i/b. Mr. S.B.
Deshmukh for Respondent No.1.
Mr. D.P. Adsule, APP for the Respondent-State.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
JUDGMENT RESERVED ON : 2nd AUGUST, 2016
JUDGMENT PRONOUNCED ON: 5th AUGUST, 2016
JUDGMENT :
By this application filed under section 482 of the Criminal
Procedure Code, the Applicant, who is the original accused No.1, has
prayed for quashing and setting aside the order of issuance of process
in Criminal Case No.217 of 1997 for offence punishable under section
500 of the IPC.
2. The Applicant, is the Chairman and the Managing Director
of Indian Express Newspaper (Mumbai) Ltd. The company is the
proprietor of various newspapers and magazines including the multi
edition English newspaper "The Indian Express" and multi edition
Marathi daily "Loksatta". On 3.10.2000 the Applicant received
summons to appear before the J.M.F.C. Court No.4, Pune on 5.10.2000
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to answer the charge under section 500 of the IPC in Criminal Case
No.217 of 1997 filed by the Respondent No.1/complainant against the
present Applicant and others in respect of the news item published in
the Indian Express, Pune edition issue of 19.5.1997 under the heading
"Tea vendor takes on ST bosses". The Respondent No.1 alleged that
the said news report was defamatory. The Respondent No.1 alleged
that by publishing the said news report the Applicant and the other
accused lowered his image in the eyes of public and had thereby
committed offence under section 500 r/w. 34 of the IPC.
3. Mr. Chitnis, the learned counsel for the Applicant has
submitted that the Applicant being the Chairman and Managing
Director was not responsible for the day to day reporting of news in
any of the editions of the Indian Express. Placing reliance on the
provision of section 7 of Press and Registration of Books Act, 1867, the
learned counsel submits that the person, whose name is printed as the
Resident Editor / Editor is responsible for publication of news and
presumption has to be drawn that the Editor or Resident editor, whose
name is specifically printed is the person solely responsible. He
therefore, claims that the Applicant herein, who is the Managing
Director cannot be held responsible and cannot be tried for offence
under section 500 of the IPC. In support of his contention he has
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relied upon the decision of this Court in Vivek Goenka V/s. State of
Maharashtra 2007 Cri.L.J. 2194.
4. Mr. Anuturkar, the learned senior counsel has submitted
that the facts in Vivek Goenka, supra are distinguishable. He has
further submitted that in the said case (accused Nos.2 to 4) the editor,
whose name was printed had accepted their responsibility on oath and
hence, the presumption under section 7 of the Press and Registration of
Books Act, 1867 has to be drawn against them. Consequently, it was
held that no case was made out against the Applicant Vivek Goenka to
face trial for offence under section 500 of the IPC.
5. The learned senior counsel Shri Anturkar has further
submitted that in the present case no such affidavit is filed and hence
the principles laid down in the said case are not applicable. He has
further submitted that the complaint contains specific allegations
against the Applicant and hence this is not a fit case for quashing the
process issued against the Applicant.
6. I have perused the records and considered the submissions
advanced by the learned senior counsel for the Applicant and the
learned senior counsel for the Respondent No.1 and the learned APP
for the Respondent-State.
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7. At the outset it may be mentioned that the present
complaint relates to the news report published in the Indian Express
dated 19.5.1997 under the heading "Tea Vendor takes on ST bosses".
Said news report was also published in "Loksatta" Marathi daily dated
28th August, 1997, Pune edition of the same company viz. Indian
Express Newspapers (Mumbai) Ltd. The Applicant herein is the
Managing Director of the said company. The complainant had filed
two separate complaints against the Applicant and the Editor, Printer,
Publisher, etc. of the respective dailies for offence under section 500
r/w. 34 of the IPC. The Applicant herein had challenged the order of
issuance of process under section 500 of the IPC in respect of
publication of news report in "Loksatta" daily, Pune edition. The Single
Judge of this court in Vivek Goenka Vs. State of Maharashtra (supra)
has quashed and set aside the order of issuance of process as against
this Applicant mainly relying upon the provisions section 7 of Press and
Registration of Books Act, 1867, as well as the principles laid down by
the Apex Court in K.M. Mathew Vs. K.A.A. Abraham & Ors. (Mathew
II) (2002) 6 SCC 670. Hence, before adverting to the controversy in
hand it would be advantageous to refer to the presumption under
section 7 of the Press and Registration of Books Act, 1867 and the
principles laid down by the Apex Court in K.M. Mathew (II) supra:-
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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, 1[or, in the case of the
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 suficient evidence, as against the person whose
name shall be subscribed to such declaration, 1[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
2[newspaper] whereof the title shall correspond with the title
of the 2[newspaper] mentioned in the declaration, 5[or the
editor of every portion of that issue of the newspaper of which
a copy is produced].
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
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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."
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9. The Apex Court while observing that 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 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.
10. In the instant case the Applicant was a Managing Director
of Indian Express newspaper and the co-accused Prakash Kardale
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(Respondent No.3) was the Editor of the Indian Express newspaper,
Pune edition. In terms of section 7 of the Act there could be a
presumption against the Editor, whose name was printed in the
newspaper to the effect that he was the Editor of the said publication
and when he was responsible for selecting the matter for publication.
The persons other than the Editor could be held responsible provided
there are specific averments that they were responsible for selecting the
defamatory matter, which was published. A perusal of the complaint
reveals that the Respondent No.1 complainant has made general
allegations that all the accused have published the false information
without verifying the veracity and knowing that the said publication
would defame the complainant. Similarly, the verification statement of
the complaint does not give any particulars but reads as under:-
"I have filed this Complaint against owner of
Indian Express Vivek Goenka, George Verghese,
Prakash Kardaley, Pandurang Bankar and Yogita
Bankar. They have defamed me for no reason.
Because of this my image in the general public is
tarnished and I have suffered mental agony. They
may kindly be punished as per law."
11. The allegations against the Petitioner are vague and general
in nature. There are no specific averments in the complaint and
verification statement that the Applicant herein was responsible for
selecting or for publishing the said news report. The averments made
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in the complaint as well as the statement under section 200 of the
Cr.P.C., on the face of it do not disclose the essential ingredients of the
offence qua the Applicant.
12. In the Case of Pepsi Foods Ltd. & Anr. Vs. Special Judicial
Magistrate and Ors, the Apex Court has observed as under :-
"28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant has
to bring only two witnesses to support his allegations in
the complaint to have the criminal law set into motion.
The order of the Magistrate summoning the accused
must reflect that he has applied his mind to the facts of
the case and the law applicable thereto. He has to
examine the nature of allegations made in the complaint
and the evidence both oral and documentary in support
thereof and would that be sufficient for the complainant
to succeed in bringing charge home to the accused. It is
not that the Magistrate is a silent spectator at the time
of recording of preliminary evidence before summoning
of the accused. The Magistrate has to carefully
scrutinise the evidence brought on record and may even
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himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness of
the allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused."
13. In Maharashtra State Electricity Distribution Company
Ltd. & Anr. Vs. Datara Switchgear Ltd. & Ors. (2010) 10 SCC 479,
the Apex Court has held that :-
"18. It is well settled that though the inherent
powers of the High Court Under Section 482 of the
Code are very wide in amplitude, yet they are not
unlimited. However, it is neither feasible nor
desirable to lay down an absolute rule which would
govern the exercise of inherent jurisdiction of the
Court. Nevertheless, it is trite that powers under the
said provision have to be exercised sparingly and
with caution to secure the ends of justice and to
prevent the abuse of the process of the court. Where
the allegations in the first information report or the
complaint taken at its face value and accepted in
their entirety do not constitute the offence alleged,
the High Court would be justified in invoking its
powers under Section 482 of the Code to quash the
criminal proceedings. "
14. In the instant case, the learned Judge has issued the process
mechanically without ascertaining whether the allegations made in the
complaint, taken at its face value and accepted in its entirety disclose
any offence as against the present Applicant. Under such
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circumstances, continuation of proceedings as against the Applicant
would be abuse of process of law.
15. Under the circumstances and in view of discussion supra
the application is allowed in terms of prayer clause (a). The order of
issuance of process under section 500 of the IPC in Criminal Case
No.217 of 1997 is hereby quashed and set aside qua the Applicant.
(SMT. ANUJA PRABHUDESSAI, J.)
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