Rohini Seetaram vs M P Noronha (Melwyn Prakash ...
2023 Latest Caselaw 4357 Kant

                              1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 13TH DAY OF JULY, 2023

                           BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

            CRIMINAL PETITION NO.2728 OF 2017

BETWEEN:

1.     ROHINI SEETARAM
       AGED ABOUT 54 YEARS
       MANAGING DIRECTOR
       CHITRA PUBLICATIONS PVT LTD.,
       400-C, INDUSTRIAL AREA
       BAIKAMPADI
       MANGALORE - 575011

2.     B.V.SEETARAM
       S/O LATE VENKATRAMANA
       AGED ABOUT 62 YEARS
       CHAIRMAN AND DIRECTOR
       CHITRA PUBLICATIONS PVT LTD.,
       400-C, INDUSTRIAL AREA
       BAIKAMPADI
       MANGALORE - 575011

                                            ...PETITIONERS
(BY SRI.VENKATESH R BHAGAT, ADVOCATE)

AND:

M.P.NORONHA (MELWYN PRAKASH NORONHA)
S/O J.M.NORONHA
AGED 49 YEARS
ADVOCATE AND NOTARY
II FLOOR, ROYAL CHAMBERS
                                   2


KODIALBAIL
MANGALORE - 575003
                                                   ...RESPONDENT

(BY SRI.CYRIL PRASAD PAIS, ADVOCATE)

      THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR
THE PETITIONERS PRAYING TO QUASH THE ENTIRE PROCEEDINGS
IN   PCR   NO.51/2014   NOW   NUMBERED     AS C.C.NO.3901/2016
PENDING    ON   THE   FILE   OF   THE   LEARNED   JMFC-II   COURT,
MANGALORE FOR THE OFFENCE P/U/S 384, 385, 389, 500, 501,
506 READ WITH 34 OF IPC AND ETC.


      THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 23.06.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The petitioners claimed to be the owners of Chitra

Publications Limited, which owns newspaper named "Karavali

Ale" are before this Court seeking quashing of the proceedings

in PCR No.51/2014, now numbered as C.C.No.3901/2016

pending on the file of the learned JMFC II Court, Mangalore,

for the offence punishable under Sections 384, 385, 389, 500,

501 and 506 read with 34 of IPC.

2. Facts leading to the case are as under;

The prosecution case is that petitioners and others

accused persons have made false publications against

respondent - complainant. The complainant has further

alleged that person representing accused demanded huge

money from complainant. It is further alleged that publications

were made in order to put fear in respondent's mind and

pressurise him to give favorable opinion to his client -

Karnataka Jesuit Educational Society to settle the case as

proposed by accused No.5.

3. The present petitioners have filed captioned writ

petition by contending that they are falsely implicated and

they have nothing to do with publications. Therefore,

proceedings are sought to be quashed on the ground that

initiation and continuation of the proceedings insofar as

petitioners are concerned is nothing but abuse of process of

law.

4. Learned counsel appearing for petitioners reiterating

the grounds urged in the petition would vehemently argue and

contend that as per Sections 3 and 5 of Press and Registration

of Books Act, 1867, every newspaper shall contain the names

of the Printer, Publisher, Editor and owner and as per Section

7, for any legal proceedings whether civil or criminal

declaration or copy of news paper containing name of editor,

printer and publisher shall be held to be sufficient evidence

who can be sued, if necessary or can sue and the presumption

under Section 7 of Press Act can be drawn only against the

Editor of the Newspaper and not owners and other Managing

Directors or Chief Editors of the News Paper. Referring to the

averments made in the complaint, he would vehemently argue

and contend that there are absolutely no allegations in the

complaint against the petitioners indicating that they had

control and selection of the news article, which is published in

the Newspaper. He would further point out that general

accusations against the petitioners are not sufficient to hold

that they have actually controlled the selection of news article.

5. To buttress his arguments, he has placed reliance

on the following judgments.

1. K.M.MATHEW VS. STATE OF KERALA AND OTHER, MANU/SC/0434/1992.

2. PRABHU CHAWLA AND ORS VS. A U SHERIFF, 1995 CRI.L.J.1922.

3. B.V.SEETARAM AND ANOTHER VS.

KRISHNA J PALEMAR, ILR 2017 KAR 669.

4. PRIYANKA SRIVASTAVA AND ORS VS. STATE OF U.P., (2015)6 SCC 287.

6. Referring to the judgment rendered by Hon'ble

Apex Court in K.M.MATHEW's case, he would contend that in

absence of such specific allegations, the Apex Court has held

that the Chief Editor cannot be proceeded with. He has also

placed reliance on the judgment rendered in the case of

PRABHU CHAWLA AND OTHERS VS. A U SHERIFF (cited

above). Referring to the said judgment, he would point out

that presumption under Section 7 is only against the person

whose name is printed as an Editor as required under Section

5(1) of Press and Registration of Books Act, 1867 (for short

'the Act'). Placing reliance on the said judgment, he would

contend that the said Act does not recognize any legal entity

for raising presumption. He would further point that even if

the name of Chief Editor is printed in the news paper, there is

no presumption against him. Referring to the judgment

rendered by this Court in the case of B.V.SEETARAM AND

ANOTHER VS. KRISHNA J PALEMAR (cited above), he

would vehemently argue and contend that it is only the Editor

against whom the offences under Section 438, 499 and 500 of

Cr.P.C can be proceeded. He has also placed reliance on the

judgment rendered by the Kerala High Court in CRL.MC

No.8/2020 and connected matters. Referring to the judgment

rendered by the Kerala High Court, he would vehemently

argue and contend that Kerala High Court while declining to

endorse the observations made by the Kerala High Court in

MAMMOTTI V. RAJAJI MATHEW THOMAS1, has referred to

the principles laid down by the Hon'ble Apex Court rendered in

K.M.Mathew's case (supra), MAKSUD SAIYED V. STATE OF

GUJRAT AND OTHERS2, RADHEY SHYAM KHEMKA VS.

STATE OF BIHAR and SMS PHARMACEUTICALS LIMITED

VS. NEETA BHALLA AND OTHERS3. The Kerala High Court

in the case of Aroon Purie has held that criminal liability

cannot be fastened upon a person on the basis of vicarious

liability unless statue specifically provides for the same.

Therefore, referring to the judgments rendered by the Kerala

High Court in the case of Aroon Purie, he would point out that

the principles laid down therein are squarely applicable to the

present case on hand and even if the entire allegations made

in the complaint are accepted, he would contend that no

offence is made against petitioners. In absence of positive

averments in the complaint in regard to the knowledge of

objectionable Article, which was published at the instance of

2006 (3) KLT 335

(2008) 5 SCC 668

AIR 2005 SC 2512

Editor and the present petitioners being the Directors have

absolutely no role in publications of the Article. Therefore, he

would request this Court to quash the proceedings.

7. Learned counsel appearing for 2nd respondent -

complainant however would counter arguments advanced by

the learned counsel appearing for the petitioners. Repelling

his contentions, he would straight away place reliance on the

judgment rendered by the Apex Court in the case of MOHD.

ABDULLA KHAN VS. PRAKASH K4. Countering the claim of

the petitioners that the Directors cannot be vicariously held

liable for the publication of an article, he has taken this Court

to the law laid down by the Hon'ble Apex Court in the case of

MOHD. ABDULLA KHAN (supra). Referring to para Nos.21

and 22, he would contend that the Hon'ble Apex Court while

examining the law laid down in K.M.Mathew case has held that

judgment rendered in K.M.Mathew case has nothing to do with

(2018) 1 SCC 615

question of vicarious liability. The controversy involved in the

case of K.M.Mathew is as to whether in view of Section 7 of

the Act, only Editor of Newspaper can be prosecuted for

defamation. While interpreting Section 7 of the Act, the

Hon'ble Apex Court was of the view that Section 7 does not

create any immunity in favour of persons other than the Editor

of a Newspaper. It only creates a rebuttable presumption that

the person, whose name is shown as the Editor of the

Newspaper, is responsible for the choice and publication of the

material in the Newspaper and reliance is placed on para

Nos.25 and 26 of the said judgment. Referring to these

paragraphs, he would point out that whether owner or a

Director is also responsible for publication of Article and

therefore, the guilty of offence under Section 482 Cr.P.C is a

matter to be tested during trial. He has also placed reliance on

the judgment rendered by the Hon'ble Apex Court in the case

of RAMVEER UPADHYAY AND ANOTHER VS. STATE OF

U.P AND ANOTHER IN SPECIAL LEAVE PETITION (CRL.)

NO.2953 OF 2022. Referring to the principles therein, he

would point out when there is a sufficient prima-facie

materials against accused, the High Court should not venture

into quashing the proceedings. The Hon'ble Apex Court was of

the view that the criminal proceedings cannot be nipped in the

bud by exercising jurisdiction under Section 482 of Cr.P.C.

8. Heard the learned counsel appearing for the

petitioners and the learned counsel appearing for the

respondent - Complainant.

9. The petitioners are seeking quashing of the

proceedings on the ground that there are no specific

allegations against the petitioners and therefore, petitioners

cannot be prosecuted for the alleged defamatory materials,

which are the subject matter of the present criminal

complaint. Now, let me examine the allegations made in the

complaint. It would be useful for this Court to refer to the

allegations made in the para No.4 and para No.11 of the

complaint, the same are culled out as under.

             "4.   Accused        Nos.1         to         4    are       the
     editors/Printers/Publisher/owners                of       the    Daily

Kannada News Paper Karavali Ale. Accused No.1 is the editor of Karavali Ale. Chitra Publication Pviate Ltd is the owner and publisher of the Karavali Ale newspaper. Accused No.2 is the Managing Director and accused No.3 is the active direct of Chitra Publication Private Ltd. Earlier accused No.3 was the Editor and Publisher of Karavali Ale. However since number of cases were filed against him, now he is representing that he is the only Director. Factually entire Karavali Ale newspaper and Chitra Publication Private Ltd is being managed by accused No.3. This printed newspaper is having wide circulations in the coastal region of Karnataka. It is being published from Mangalore and Karwar. Apart from the same, it is being published through electronic media. It is being widely circulated as E-paper and throughout the world lakhs of people are reading the same. Accused No.4 is the printer. Its owner/person in charged requires to be

investigated by the police wile enquiring into this matter. Complainant is not aware of the name of the owner or the person in charge of accused No.4. It is publishing printed news as well as E-paper News in internet as Epaper.Karavali.Ale.Net. Said Karavali Ale newspaper is well known for Yellow Journalism and is having several cases against it. That the accused Nos.1 to 4 have been indulging in yellow journalism by publishing false stories under sensational headlines only to increase its readership and its sale. That the accused No.1 to 4 have totally misused the freedom of expression given to the press and have been using their newspaper as a tool to extort and extract money."

11. It appears that on 26th June 2012 Mr.John Baptist Lewis had lodged a complaint to the Police in respect of an alleged incident dated 26.06.2014. When the enquiry was pending before the Police and the Police were investigating into the matter, 5th accused all of a sudden interfered, with the active support of accused Nos.1 to 4 and few others so as to once again trying to come to the limelight by taking undue advantage of the

situation and thereby unnecessarily interfered in the matter by giving false statements to the media with his photographs. Statement given to the media by the 5th accused are against the statements given by John Baptist Lewis in the said Police case. Thereafter the Complainant was shocked to hear from several people that complainant's name is also being dragged into the controversy and that 5th accused has given a letter to the Commissioner of Police alleging that the Complainant was also present along with the Rector Denzil Lobo when the premises was allegedly demolished as if 5th accused had seen the alleged incident, although accused is aware that complainant was not at the site at the time of alleged incident and even FIR did not disclose his name. The Complainant is totally shocked at the false statements given by 5th accused. All the accused with the common intention of maliciously defaming the complainant and extorting money from the complainant have published false news from time to time."

10. On bare reading of these two paragraphs, this

Court is of the view that the grounds urged in the captioned

criminal petition cannot be entertained. The allegations made

at para Nos.4 and 11 clearly indicates that specific allegations

are made against the petitioners. There are specific allegations

that the accused No.2 is the Managing Director and accused

No.3 is the Active Director of the Chitra Publications Private

Limited. There are specific allegations that these two

petitioners, more particularly accused No.3 was the Editor and

Publisher of the Karavali Ale. Since several cases are filed

against petitioners, they are now representing the Chitra

Publication Private Limited as a Director. Therefore, on

examining the allegations in the complaint as indicated at para

Nos.4 and 11, I would find specific allegations are made even

against the present petitioners. If there are prima-facie

materials against the petitioners, then the complainant

deserves a fair opportunity to substantiate and prove his

allegations and therefore, this is not a fit case to interfere and

quash the proceedings under Section 482 of Cr.P.C. If the

allegations made at para Nos.4 and 11 are taken cognizance

of, then this Court is of the view that there are specific and

clear allegations even against the petitioners and therefore,

whether petitioners, who are the Directors of Chitra

Publication Private Limited, which owns the Newspaper, were

also directly involved and had a control and knowledge of

publication of the Article is purely subject matter of Trial and

therefore, complainant is entitled to proceed against the

petitioners also and the question as to whether the present

petitioners, who are the Directors, are also liable for

defamatory materials carried by its Newspaper is a question to

be tested by a full fledged Trial. Therefore, I am not inclined

to examine the veracity of specific allegations made against

the petitioners as indicated at para Nos.4 and 11 of the

complaint. Therefore, I am of the view that this is not a fit

case to quash the proceedings against the petitioners. The

petitioners have to face Trial and the burden is on the

complainant to prove the offences against the petitioners and

other accused.

No case is made out.

The criminal petition is dismissed.

All pending applications, if any, are also dismissed.

Sd/-

JUDGE

NBM