Gautam Adhikari And Anr. vs Jagir Singh
2001 Latest Caselaw 1872 Del

JUDGMENT

K.S. Gupta, J.

1. Crl.M.(M) No.2664/95 under Section 482 Cr.P.C. which was allowed to be treated as a revision later on, was filed on 6th/13th November 1995 alleging that petitioner No.1 is the Executive Director while petitioner No. 2 is printer and publisher of 'The Times of India' newspaper owned by M/s.Bennett Coleman & Co.Ltd, 7, Bahadur Shah Zafar Marg, New Delhi. On 25th September 1994, Sajjan Kumar, DPCC General Secretary and Member of Parliament held a Press Conference in which he invited journalists from various newspapers. News based on the statement made by Sajjan Kumar in the press conference was published bonafidely in the issue of 'Times of India' dated 26th September 1994 keeping in mind the interest of public. Last paragraph of the news item reported is as follows:-

"In fact, in the case of 35 restaurants, all criteria had been given the go-by, Mr.Sajjan Kumar alleged. Several restaurants with unsavoury reputation of being dens of prostitution have been given licenses, he charged, citing the case of Mayapuri restaurant with notrious reputation as an example. Shady restaurants and hotels were being issued licenses while the owners of well know Connaught Place restaurants were being harassed."

2. It is alleged that the respondent through counsel issued a notice to petitioners on 10th October 1994 alleging that they published the said news item recklessly by making libel against him. Petitioners sent separate replies dated 22nd October 1994 through their counsel to the said notice. In the reply sent on behalf of petitioner No.1 it was stated that in the news-item in question there was no reference to the respondent either directly or indirectly and, therefore, he is not know what is published in the newspaper until the newspaper is delivered to him by the hawker in morning and, therefore, he is not liable for what was printed in the issue dated 26th September 1994. It is also alleged that despite these replies the respondent filed complaint case No.125/1/94 under Sections 499, 500 and 501 IPC before a Metropolitan Magistrate at Tis Hazari courts who after taking cognizance, has issued summons for appearance of petitioners on 8th November 1995. It is claimed that the allegations made in the complaint even if the are taken at their face value, do not disclose commission of any offence by the petitioners. It was prayed that the proceedings initiated against petitioners in said complaint case No.125/1/94 may be quashed.

3. Respondent-complainant contested the petition by filing reply. it is alleged that he has been carrying business of hotel and restaurant at C-4/1, mayapuri Chowk, New Delhi for the last about 6 to 8 years. The restaurant is having a licensed bar. There is no other licensed bar in the area of Mayapuri. Statement made in the issue of 'Times of India' dated 26th September 1994 directly refers to the hotel and restaurant of the respondent. Respondent is a well known person in the locality and people can very well make out and have actually made out that the imputation made in the news-item pertains to his hotel and restaurant. Petitioner No.1 being the editor and petitioner No.2 being printer and publisher of newspaper, are equally guilty for the offence of defamation. It is asserted that the allegations made in the news-item in question really constitute the offence of defamation against both the petitioners.

4. It was contended by Sh.H.R.Khan Suhail for petitioners that petitioner No.1 was not an Editor but Executive Editor at the relevant time and there is nothing to show either in the complaint or statement of complainant-respondent recorded under Section 200 Cr.P.C. that he controlled the selection of the matter which was published in 'Times of India' dated 26th September 1994 and, therefore, the Metropolitan Magistrate acted erroneously in issuing process against petitioner No.1. Reliance was placed on the decisions in Haji C.H. Mohammad Koya v. T.K.S.M.A.Muthukoya, ; K. Mathew v.State of Karnataka, ; Prabhu Chawla v. A.U. Sheriff, III (1995) CCR 631 and K.M. Mathew v. Ashok Tanwar, IV (1995) CCR 543. On the other hand, it was urged by Sh. M.M. Kalra appearing for respondent-complainant that petitioner No.1 being an Executive Editor of newspaper was responsible for the publication of offending article under Section 7 of the Press and Registration of Books Act, 1867 (for short the 'Press Act') and it was for petitioner No.1 to establish that he was not responsible for selecting the material and publication thereof. Thus, the controversy centres around the issue whether petitioner No.1 as Executive Editor could be presumed to be responsible for selection of offending article which was published in the issue dated 26th September 1994?

5. Section 1(1) of the Press Act defines 'Editor' as a person who controls the selection of the matter that is published in a newspaper. Section 3 provides that every book or paper printed within India shall have printed legibly on it the name of printer and place of printing, and if the book or paper be published the name of publisher and place of publication. Section 5(1) says that without prejudice to the provisions of Section 3, every copy of such newspaper shall contain the names of owner and editor thereof printed clearly on such copy and also the date of its publication. Sub-section (2) of Section 5 makes it incumbent on the printer and publisher to appear before the authorities mentioned in that section and make a declaration. Section 6 provides authentication of every such declaration. Section 7 which is material, reads thus:-

"In any legal proceeding whatever, as well civil and 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 declaration, 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 sufficient evidence, as again 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 or the editor of every portion of that issue of the newspaper of which a copy is produced."

6. Section 8 provides the procedure for new declaration by persons who have signed declaration and subsequently ceased to be the printers or publishers of newspaper. Section 8A says that where any person's name has appeared as an editor in a paper although he was not an editor, he shall 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 has been incorrectly published and get a certificate from the Magistrate that he provisions of Section 7 shall not apply to him. A conjoint reading of said provisions would reveal that Legislature had taken into account the inconvenience and hardship to which a person aggrieved from a publication would be put if he is required to make fishing or roving enquiry about the person who personally would be responsible for making or publishing of a defamatory matter. Copies of complaint filed by the respondent is placed at pages 42 to 52 while that of statement of respondent at pages 56 to 58 on the file. To be noted that in the cause title the petitioner No.1 has been shown to be Executive Editor of 'Times of India' which assertion has also been reiterated in Para No.9 of the complaint. Neither in the complaint or in statement of complainant-respondent it has been stated even remotely that petitioner No.1 controlled the selection of matter which was published in the issue dated 26th September 1994. The word 'Executive Editor' is conspicuously absent in the Press Act. In the absence of allegation and/or evidence to the said effect, presumption under Section 7 of the Press Act which is available in respect of Editor, cannot be drawn against petitioner No.1 who at the time of publishing the offending article was working as Executive Editor. In aforementioned decisions it was held that presumption under Section 7 of the Press Act was not available against the persons (s) holding the post other than that of an Editor. In the decision in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., the categories of cases at serial No. 1 and 3 wherein power under Section 482 Cr.P.C. could be exercised either to prevent abuse of process of court or otherwise to secure the ends of justice which are material have been enumerated thus (page 629):-

"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

3. Where the uncontroverter 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. In the backdrop of above discussion, obviously, case of petitioner No.1 is covered by said category No.3 and proceedings qua him, thus, deserves to be quashed.

5. It was next contended on behalf of petitioner No.2 that the article in question does not pertain directly or indirectly to respondent / complainant; respondent had not examined any independent witnesses to prove that as a result of publication of offending article he was defamed in the eye of others; offending article was printed and published bonafidely for public good petitioner No.2 did not participate in the selection and publication of article and in any event he came to know about it only when he received the newspaper in the morning on 26th September, 1994. It may be noticed that by the order dated 17th December 1994 the Metropolitan Magistrate had directed SHO PS Kirti Nagar to verify if respondent's hotel and restaurant only was having the licensed bar in Mayapuri. Report dated 18th January 1995 the licensed bar in Mayapuri. Report dated 18th January 1995 sent by SHO reference whereof is also made in court's orders dated 21st January 1995 and 23rd January 1995, notices that there is no other licensed bar in the area and license granted on 19th August 1994 is valid up to 31st March 1995. This report coupled with the statement of respondent/complainant, prima facie, indicates that offending article pertains to the respondent. Further, it is in the deposition of respondent that he belongs to Sikh community and enjoys good reputation in community; after the publication of news item his relations have started doubting his character and it has resulted into great loss of his reputation. To be noted that statement of respondent under Section 200 Cr.P.C. was recorded limited to the purpose of passing summoning order. Independent witnesses in regard to his having been defamed as a result of publication of offending article are to be examined during trial. The plea that article in question was published bonafide for public good being in the nature of defense, cannot be gone into in these proceedings. Article in question seems to be per se defamatory. presumption under Section 7 of the Press Act is available against petitioner No.2 and he will, thus, be presumed to be aware what was printed and published in the issue dated 26th September 1994. Therefore, on none of the said grounds he is entitled to the relief prayed for.

6. For the forgoing discussion while allowing the petition partly, the complaint summoning order qua petitioner No.1 is quashed.