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1988 DIGILAW 333 (KER)

K. M. MATHEW v. NALINI

1988-07-21

SANKARAN NAIR

body1988
Judgment :- 1. This matter comes up on remand. 2. Petitioner, one of the accused in C.C.147/86 on the file of the Additional Judicial Magistrate of First Class, Kozhikode, moved this court under S.482 of the code, to quash a complaint for defamation against him, on the allegation that an article defamatory to the complainant appeared in the paper. Petitioner is the Chief Editor of a newspaper. 3. The complaint was quashed, as there was no averment that the Chief Editor was the person who selected the material for publication. The decisions in C.H. Mohammed Koya v. Muthu Koya (AIR. 1979 SC. 154), State of Maharashtra v. Choudhury (AIR 1968 SC. 110) and D.P. Mishra v. K Sharma (AIR. 1971 SC. 856) were relied on to hold that the Chief Editor could not be held liable. 4. Complainant-respondent took up the matter in appeal to the Supreme Court, in Crl. A. 282/88. The Supreme Court set aside the order and remitted the matter observing: "The High Court shall direct the respondent to formulate the ground in the form of an affidavit and allow appellant herein to file an affidavit in rejoinder and thereafter bear the parties on the question as to the maintainability of the complaint against the respondent herein". 5. Accordingly, petitioner was directed to file an affidavit and the respondent a rejoinder. In petitioner's affidavit dated 24-6-88, it was stated that, He is the Chief Editor of Malayala Manorama published from four centres, that even according to the respondent the news item appeared only in the Calicut Edition, that other centres did not carry the news, that Malayala Manorama has separate News Editors for Kottayam, Cochin. Trivandrum and Calicut, that Chief Editor has no personal control or supervision over each of the local news published from the four centres, that local news items are edited and published by Editors at local centres, that office of the Chief Editor is at Kottayam, that petitioner bad no control or supervision in selection of material, that be is only controlling the general policy of newspaper, that he had no opportunity to see the new item before it was published, and that there is no averment in the complaint that he was the person who selected the material for publication or that be was in any way personally responsible for its publication. In the rejoinder affidavit, complainant-respondent submitted that. In the rejoinder affidavit, complainant-respondent submitted that. Copy of the Malayala Manorama daily in which defamatory news item is published the name of the Chief Editor K. M. Mathew only is shown, that if there is an editor, the name of the editor ought to have been shown in the copy of the paper published, that the statement that the Malayala Manorama has separate News Editors for particular centres is not acceptable, and that "I need not specifically mention in the complaint that he is the person who selected that material for publication". 6. Counsel for petitioner submitted that the newspaper in question is the largest selling daily to the country with four editions, and that the petitioner who resides at Kottayam about 300 Kms. from the place of publication is not responsible for the article and that he bad nothing to do with its publication. Counsel submitted that there must at least be an allegation, that petitioner was responsible for selecting the material or that be had the necessary intention or knowledge, to make him liable. In para 16 of the complaint, all that is stated is: "As the Chief Editor are chargeable for the offence": 7. Even in the rejoinder, complainant has no case the petitioner selected the materia, or that be was at least aware of the contents of the report. Para 5 reads: "I need not specifically mention in the complaint, that he is the person who selected the material for publication". During the bearing, I asked the respondent who appeared in person, whether she had a case that petitioner was aware of the publication or was in any way connected with it. The answer was: "I need not answer it; The Complaint is as per provisions of law". I have difficulty in appreciating the attitude adopted by respondent. I do not wish to express myself strongly, for, I think absence of strong expression does not diminish the quality of judicial expression, certainly use of strong language, does not enhance the quality. 8. An additional affidavit was filed stating the names of the four editors. Complainant refused to accept a copy of this and cautioned me that to accept the affidavit would amount to disregard of the directions of the Supreme Court. I fail to see how. Any way, I do not think it necessary to accept the affidavit. 9. 8. An additional affidavit was filed stating the names of the four editors. Complainant refused to accept a copy of this and cautioned me that to accept the affidavit would amount to disregard of the directions of the Supreme Court. I fail to see how. Any way, I do not think it necessary to accept the affidavit. 9. The solitary ground, on which the complaint rests is that name of the Chief Editor appears on the newspaper, and therefore that be must be presumed to be responsible for the publication. Respondent relied on S. S of the Press and Registration of Books Act, which is captioned 'Rules as to publication of news papers'. "Rules as to publication of newspapers. (1) every copy of every such news paper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication". According to respondent-complainant, S.5 raises a presumption that petitioner is responsible for the publication, and there is no need to allege or plead that petitioner selected the material or that he was performing the functions of 'editor'. These are to be presumed, respondent submits. It is difficult to accept this contention because, there is very high authority to the contra. In C.H. Mohammed Koya v. Muthu Koya f AIR 1979 SC 154), the Supreme Court said: "The Press Act does not recognise any other legal entity except the editor in so far as responsibilities of that office are concerned. Therefore, mere mention of the name of the Chief Editor is neither here nor there, nor does it in any way attract the provisions of the Press Act, particularly S.7. (emphasis supplied) In view of the clear statement that no entity other than the editor is recognised, in view of the clear statement that the mention of the name of the Chief Editor is neither here nor there, and in view of the clear statement that S.7 is not attracted, it is not possible to accede to the contention that mention of the Chief Editor's name raises a presumption or that: "I need not specifically mention in the complaint that he is the person who selected the material for the publication." 10. The words of the Supreme Court in Mohammed Koya's case bear repetition. The words of the Supreme Court in Mohammed Koya's case bear repetition. Rejecting a like contention the court observed: "it is not even pleaded in the petition, much less proved, that the appellant being the Chief Editor, it was part of his duty to edit the paper and control the selection of the matter that was published" "Petitioner himself has not at all anywhere pleaded that appellant was the editor, nor has he mentioned the duties or responsibilities which were performed by the appellant as Chief Editor as to bring him within the fold of S.1 of Press Act" "Petitioner has miserably failed to prove either that 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 S.7 of the Press Act could be drawn only if the person concerned was an editor within the meaning of S.1 of the Press Act. Where however a person does not fulfil the conditions of S:1 of the Press Act, and does not perform the functions of an editor, whatever may be Ms description or designation, the provisions of the Press Act would have no application".(emphasis supplied) It is useful to notice another passage from the decision of the Supreme Court cited supra, to the effect that: "Where a person is not shown in the newspaper to be its Editor, no such presumption under S.7 of the Press Act can be drawn, but it must be held that be has no concern with the publishing of the article Chief Editor is an office which is, not at all contemplated by the Press Act".supplied) It is now necessary to notice the definition of Editor. S.1 (1) reads: "Editor means the person who controls the selection of the matter that is published in the newspaper". Thus, the definition of the 'Editor' is functional. The functions being controlling selection of matter. 11. S.1 (1) reads: "Editor means the person who controls the selection of the matter that is published in the newspaper". Thus, the definition of the 'Editor' is functional. The functions being controlling selection of matter. 11. The law declared by the Supreme Court is that, whether a person is 'editor' is a matter of pleading and not presumption, that'Chief Editor is not all an office contemplated by the Press Act', that the "mere mention of the name of the Chief Editor is neither here nor there", that an editor is a person who selects the material, and that the editor is the only legal entity recognised, T cannot accept the contention that a presumption must be raised that the respondent. "need not specifically mention in the complaint that he is the person who selected the material for publication". 12. Prom the foregoing discussion, petitioner does not answer the description of an 'editor' and there is no material whatsoever in the complaint or in the rejoinder affidavit, to suggest that a prima facie case is made out or that the complaint is maintainable against the petitioner. 13. The inherent jurisdiction must be used to prevent abuse of process of court. The text to decide whether complaint should be quashed, is indicated by the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan ((1983) 1 S.C.J. 228): "Test is that taking the allegation add the complaint as they are without adding or subtracting anything, if no offence is made out. then the High Court will be justified in quashing the complaint". In the instant case, much will have to be added to the complaint, if even prima facie an offence is to be inferred. In Chandrapal Singh's Case ((1982) 1 S.C.C. 466), in the same context Supreme Court warned: "Chagrined and frustrated litigants should not be permitted to give vent to their rustration by cheaply invoking the jurisdiction of criminal court". Being asked to stand a trial, when there is no basis therefore, could be agonising. It could even lead to loss of faith in the institution. Proceeding with complaints for which there are no basis has been viewed with disfavour by the highest court, lest courts which are the temples of justice turn out to be instruments of harassment and vengeance. 14. It could even lead to loss of faith in the institution. Proceeding with complaints for which there are no basis has been viewed with disfavour by the highest court, lest courts which are the temples of justice turn out to be instruments of harassment and vengeance. 14. Having regard to paucity of pleadings and material, to suggest that even a prima facie case is made out against the petitioner, and in the circumstances indicated above the complaint against the petitioner is not maintainable. I think that this is a fit case for exercising the inherent jurisdiction under S.482 of the Code of Criminal Procedure. Accordingly, the complaint in C.C.147/86 in so far as it relates to the petitioner herein, is quashed. The learned Magistrate will proceed with the case, against the other accused.