H.K.Dua vs Jagat Singh
2011 Latest Caselaw 3795 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        CRL.M.C. 1862/2007

     %                 Judgment reserved on : 11th July, 2011
                       Judgment delivered on: 8th August, 2011

         H.K.DUA                                 ..... Petitioner

                                 Through:    Mr.N.B.   Joshi  &
                                 Mr.Purushotam Mishra Advocates
                       versus

         JAGAT SINGH                             ..... Respondent

                                 Through: None

         CORAM:
         HON'BLE MR. JUSTICE SURESH            KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?                     YES
     2. To be referred to Reporter or not?        YES
     3. Whether the judgment should be reported YES
        in the Digest?

SURESH KAIT, J.

1. The matter was taken up on 11.07.2011 and the

following order was passed:-

"The matter was called at about 11.00-11.30 am in the morning and no one was present on behalf of the respondent. This Court requested the learned counsel for the petitioner to contact the respondent's counsel. Accordingly, counsel for the petitioner contacted on telephone No.23973030, stated to be not in existance.

Another attempt made by the learned counsel for the petitioner at Tehsil Building, Chamber No. 17, Tis Hazari Court, Delhi. The advocates occupying the said chamber informed that no such person is operating from the said chamber. This address and telephone are also indicated in the Bar Association Directory.

The order sheet reveals that as many as 13 times, neither the respondent nor counsel for the respondent appeared in this matter.

I note, vide order dated 21.07.2008 a notice of default was issued to Mr. Pramod K. Dubey, Advocate. Another notice was issued vide order dated 16.12.2008. Thereafter, vide order dated 21.04.2009 another notice was issued.

Today, even on second call, none appeared on behalf of the respondent. Having no other option, this Court is constrained to proceed in the absence of the respondent as the ld. Counsel is playing the trick of hide and seek.

Arguments heard. Judgment reserved."

2. The instant petition under Section 482 Criminal

Procedure Code, 1973 (hereinafter referred to as the „Cr.

P.C.‟ is being filed for quashing the Criminal Complaint Case

bearing CC No.213/1/1994 titled as „Jagat Singh Vs. Chief

Editor, Indian Express & Ors‟ under Section 500 Indian Penal

Code, 1860 (hereinafter referred to as the „IPC‟) pending

before the Learned Metropolitan Magistrate, Rohini Courts,

Delhi, which was filed by the respondent herein.

3. The issue in the aforesaid complaint case was

that the complainant/respondent herein was shocked to

read a report published in the daily edition of an English

newspaper "The Indian Express" on 11.10.1994, in which the

petitioner/accused had published a news by a the heading

"Court charges Delhi cop with money swindling".

4. The complainant asserts in the said complaint that, the

news items published in the said paper were totally false,

baseless and contrary to the records and is far from the

truth. The news is defamatory in nature, by which, the

complainant‟s reputation, ruined in the eyes of a common

man, his family members, friends and his colleagues. As

per the respondent, the news clearly shows malicious

intentions, pre-planned scheme with ulterior motive of the

accused persons to defame the complainant in the eyes of

public at large, in family, friends and his colleagues and

officials. That news/imputation harmed the reputation of

complainant as a lot of people including his colleagues,

relatives, family members and higher officials asked about it

and said "What is this?" "How such type of news is published

against you?"

5. By filing the aforesaid complaint case, the

complainant/respondent strongly condemns that news

particularly in para Nos.1, 3, 4, 5 (1).

6. Further he asserts that it was a totally wrong, incorrect and far from the truth and at any Court of law at Delhi has charged the complainant with swindling case property with about ` 52,000/- from police station Kamla Market, Delhi.

7. On filing the complaint, ld.Metropolitan Magistrate,

after going through the evidence on record, vide order dated

25.09.1995 issued the summoning order under Section

500/34 IPC. Pursuant to aforesaid order the petitioner

appeared in Court and bail was granted by the ld. Trial Court.

8. Thereafter, the petitioner moved two applications

before the ld. Trial Court. The first application was for

dropping the proceedings in terms of the then declared law

of Supreme Court in case K. K. Mathew Vs. State of

Kerala AIR 1992 SC 2206. The second application was

filed by the petitioner for exemption from personal

appearance till further orders and be permitted for putting in

appearance through his counsel.

9. Vide order dated 20.12.1997, ld. Trial Court exempted

the petitioner from his personal appearance through is

Advocate Mr. N. B. Joshi.

10. Ld. counsel for petitioner has submitted, according to

the complaint, there were only two alleged accused persons,

neither of whom had been impleaded by name. Accused

person impleaded was the then Chief Editor „Indian Express‟.

The other accused who is accused No.2 was described as

„Press- Reporter (concerned)-"Indian Express". As such,

service has yet not been affected on the accused No.2.

11. Ld. counsel for the petitioner has raised the legal issue

that, the petitioner being the chief editor, could not be sued

in terms of the Press and Registration of Books Act, 1867

(hereinafter referred to as the „said Act‟). The person

responsible for controlling and selection of the matter to

appear in a newspaper is the „Editor‟. "The Editor" is defined

under Section 1 of the said Act as under:-

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

12. The petitioner being the Editor-in-chief of the

newspaper was not responsible for the controlling and

selection of the matter to be published in the newspaper. He

was the responsible at the relevant time only for issuing

broad, general policy guidelines that the newspaper was to

follow.

13. „The Indian Express‟ being a multi edition newspaper

had to publish news with regard to the national importance

as well as of local importance for each edition of the

newspaper. News of local importance would be published

under the supervision, control and selection of the metro

editor, who for the purpose of the said Act would be „the

editor‟ in the context.

14. Though the exemption of the petitioner was allowed

through his counsel Mr. N. B. Joshi, however, on 03.02.2007

one Mr.Naveen Kumar Trivedi, whose Vakaltnama was not on

record, appears for the petitioner/ accused and presents the

application for exemption from appearance on behalf of Mr.

N. B. Joshi, Advocate. Ld.Magistrate dismissed the aforesaid

application by saying that there is no Vakaltnama ,

therefore, no hearing can be granted and the application was

dismissed. Further the ld.Magistrate issued NBWs against

petitioner/accused and notice to his surety for the next date

of hearing.

15. The petitioner filed the instant petition and raised the

legal issue - Whether the proceedings in the present

complaint can go on against the chief editor, who is the

accused No.1 in the complaint case which is pending before

the ld.Metropolitan Magistrate, Rohini Courts, Delhi? He has

further challenged the NBWs issued vide order dated

03.02.2007.

16. Firstly, I will deal with the first issue.

17. Ld. counsel for the petitioner has relied upon the

judgment of the Karnataka High Court in the case of Prabhu

Chawla Vs A. U. Sheriff III (1995) CCR 631, wherein it

was held that, as per the definition of the „Editor‟ in Section

1(1) of the Act, means a person who controls the selection of

the matter that is published in a newspaper. There is no

reference to Resident Editor, Executive Editor, Managing

Editor in the said Act. There are no allegations against the

aforesaid persons in the complaint to show that they have

any hand in selection of the matter that is published in the

„Indian Express Newspaper‟. Further held that, in absence of

positive avermetns against the petitioner Nos.1 to 3, who are

described as Executive Editor, Managing Editor and Resident

Editor and in the absence of presumption available u/s 7 of

the said Act, against them, ld.Magistrate could have not

ordered process for the alleged offence u/s 500 IPC.

18. Ld. counsel for the petitioner vehemently argued that

in the instant case, there is no averment against the chief-

editor, except the ulterior motives attributed to him. Even

the imputation is general and vague. The complainant relied

upon the presumption under Section 7 of the said Act, which

has no applicability for a person who is simply named as

„chief editor‟. The presumption u/s 7 of the said Act is only

against the persons whose name is printed as „editor‟ as

required u/s 5 (1) of the said Act. There is a mandatory

(though) rebuttal 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 said Act defines „Editor‟ to a person who controls

the selection of the matter that is published in a newspaper.

Section 7 of the said Act 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 recognize

any other legal entity for raising the presumption.

19. Even if the name of the Chief Editor is printed in the

newspaper, there cannot be any presumption against him

u/s 7 of the said Act.

20. This issue was decided long back in the case of Haji C.

H. Mohammad Koya Vs. T.K.S.MA.Muthukoya (1979)

1 SCR 664:(AIR 1979 SC 154) as under :-

"10. It is important to state that for a Magistrate to take cognizance 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 allegations, 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."

21. As was decided in the aforesaid case, Haji C. H.

Mohammad Koya(Supra) that in the absence of positive

averments against petitioner Nos.1 to 3, who are described

as Executive Editor, Managing Editor and Resident Editor and

in the absence, presumption available u/s 7 of the said Act

against them, ld. Magistrate, could not have ordered

processes 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. Keeping the aforesaid discussion

into view, the proceedings was quashed against the

petitioners.

22. In the case of A. K. Jain & Another Vs. State of

Sikkim & Another' 1992 Crl. L J 839, the complainant did

not disclose any facts so as to connect the applicants with

the publication of the alleged defamatory item. The mere

fact that applicant No.1 was the chairman and applicant No.2

was the Managing Director of the Company that carried on,

amongst other businesses, the business of printing and

publishing the Nav Bharat Times was by itself, not sufficient

to make the applicants liable for the publications. The Nav

Bharat Times was managed by the applicants as Chairman

and Managing Director did not amount to an evidence of the

fact that these persons were concerned with the making,

printing or publishing of the time. Thus, there was no

evidence whatsoever as to the common intention or

participation of the applicants in the publication of the item.

Besides there is no presumption u/s 7 of the said Act that the

Chairman or the Managing Director of the company that

owns a newspaper is responsible for the selection of the

matter that is published in a newspaper or for its printing or

publishing.

23. Thus, the Court has opined that there is no evidence

which shows the involvement of the petitioner with the

making, printing, or publishing of the news item in question,

nor there being any presumption of law about the

involvement of the incumbents of the respective offices held

by them as to the making, printing or publishing of the

contents in a newspaper, the issue of process by the ld.

Magistrate by the impugned order was not proper in view of

the Section 1(1) of the said Act.

24. In the instant case, the petitioner was working at the

relevant time as Chief Editor of „Indian Express‟. The other

accused was made by the respondent as „The Press -

Reporter (concerned), Indian Express, Express Building,

Bahadur Shah Zafar Marg, New Delhi.

25. Keeping in view the above discussion and the

provisions of the said Act, the person responsible for the

controlling and selection of the matter to appear in the

newspaper is the „Editor‟. The „Editor‟ is defined u/s 1 (1) of

the said Act.

26. In my view opinion, the petitioner being the Editor-in-

Chief in the newspaper was not responsible for controlling

and selection of the matter to be published in the

newspaper.

27. I, therefore, quash the complaint No.213 of 1994 and

the proceedings emanating therefrom, qua the petitioner

only.

28. The alleged offence has been committed and wrong

person has been impleaded. In this situation the

respondent/complainant may substitute the right person, if

he so desires, as per law.

29. Criminal M.C. No.1862/2007 is allowed in the aforesaid

direction.

SURESH KAIT, J

August 08, 2011 Mk/RS