MAMMAN MATHEW v. INSTRUMENTATION LTD — 1988 DIGILAW 392 (KER)

Judgment :- 1. These petitions are at the instance of accused 1 and 2 in two cases pending before the court below. They, along with two others, stand charged with offence u/S. 500 IPC read with S.34 IPC. The petitioners are Managing Editor and Chief Editor respectively of Malayala Manorama daily. They seek to quash the complaint in so far as they are concerned, on the ground that they being the Managing Editor and the Chief Editor respectively of the newspaper, are not liable to be prosecuted for offence u/S 500 IPC. It is their further case that the complaint does not make out any offence as against them and hence it has to be quashed u/S 482 of the Code of Criminal Procedure. 2. The Calicut edition of Malayala Manorama published two articles on 11-6-1987 and 12-6-1987. On the allegation that those articles contained defamatory materials, Sri K.G. Kini, General Manager of M/S. Instrumentation Limited, Kanhikode, filed a private complaint before the Additional Judicial First Class Magistrate's Court, Palghat, for offence u/S. 500 read with S.34 IPC. In that complaint the Managing Editor, the Chief Editor, Printer and Publisher of Malayala Manorama, Calicut Edition and its representative were impleaded as accused The learned Magistrate recorded the sworn statement of the complaint. There-after the complaint was taken on the file as C. C. 216/87. 3. M/S. Instrumentation Limited, Kanhikode, represented by its General Manager, Sri K.G. Kini, filed yet another complaint against the above mentioned four persons for offence u/S. 500 read with S.34 IPC before the same court. The General Manager was examined by the learned Magistrate. Thereupon the complaint was entertained as C. C. 217/87. 4. Sri K. P. Dandapani, learned Counsel appearing for the petitioners, contends that the Managing Editor and the Chief Editor of a newspaper can under no circumstance be proceeded against for offence u/S 500 IPC. According to him, neither the Managing Editor nor the Chief Editor is an "Editor" as contemplated by the Press and Registration of Books Act, 1867, hereinafter referred to as "the Act", and so none of them can be made liable for the matters published in the newspaper. According to Counsel, the Act contemplates only an "Editor" and he alone is liable for the publication of the news items. 'Editor' alone can be proceeded against. According to Counsel, the Act contemplates only an "Editor" and he alone is liable for the publication of the news items. 'Editor' alone can be proceeded against. In support of this argument the learned Counsel relies on the decision in Haji C.H. Mohammad Koya v. T.K.S.M.A. Muthukoya (A.I.R.1979 S.C.154), Mathew v. Nalini (1987(2) KLT 286) and an un-reported decision of this court in Crl M.C. 917 of 1986. 5. S. I (1) of the Act defines 'Editor' in the following manner: "'Editor' means the person who controls the selection of the matter that is published in a newspaper". S. 7 of the Act raises a presumption that a person whose name is printed in a copy of a newspaper as the 'Editor' is 'Editor' of every portion of that issue. So, where in the paper a person is named as 'Editor' that person is to be presumed to be responsible for selection of all the materials published in that issue. Such a presumption as is available against the 'Editor' cannot be pressed into service in case of others who are holding other posts not contemplated by the Act. In Haji C. H. Mohammad Koya v. T.K.S.M.A. Muthukoya (A.I.R. 1979 S. C. 154) the question that arose for consideration before the Supreme Court was whether Sri Mohammad Koya who was merely described as Chief Editor of'Chandrika' daily, was really the 'editor' of the paper and thereby liable for the matters published in it by virtue of the presumption u/S 7 of the Act. The issue of'Chandrika' mentioned the name of one Aboobaker as the Printer, Publisher and Editor of the paper. Sri Mohammad Koya was not shown as the Editor. He was shown as the Chief Editor. The office of Chief Editor is not one contemplated by the Act. There was no pleading or evidence regarding the nature of duties performed or responsibilities shouldered by the Chief Editor. Nor was there any averment in the petition that Sri Mohammad Koya controlled the selection of matters that are published in the paper. In such a situation, the Supreme Court held that no presumption u/S 7 of the Act can be drawn against Sri Mohammed Koya. This decision, according to me, lays down the proposition that an 'Editor' of a paper is responsible for all the matters published in that newspaper because of the presumption u/S 7 of the Act. In such a situation, the Supreme Court held that no presumption u/S 7 of the Act can be drawn against Sri Mohammed Koya. This decision, according to me, lays down the proposition that an 'Editor' of a paper is responsible for all the matters published in that newspaper because of the presumption u/S 7 of the Act. If in a given case there is specific allegation and proof that the Managing Editor or the Chief Editor of the daily was responsible for the publication of a particular news item or that the news item was selected and caused to be published at their instance, then the Managing Editor or the Chief Editor as the case may be, will be liable along with the Editor. In other words, the liability of a Managing Editor or Chief Editor, as the case may be, for the publication of any news item, will depend on the allegation and proof regarding the part played by him, in the selection and publication of the news item. The Managing Editor or the Chief Editor cannot, in the absence of specific allegation, be proceeded against, by resorting to the presumption u/S. 7 of the Act. 6. In Mathew v. Nalini (1987 (2) KLT 286) Sankaran Nair, J., observed: "An editor is liable for the material published by reason of S.7 of the Press and Registration of Books Act (Act 25 of 1867). Editor is defined in S. I (1) of the Act as the person selecting the material for publication. The definition is not Dy nomenclature but functional. The sweep and ambit of the section considered by the Supreme Court of India in State of Maharashtra v. Choudhury (AIR. 1968 SC 110), in D.P. Mishra v. K. Sharma (AIR 1971 SC 856) and in C.H. Muhammad Koya v. Muthu Koya (AIR 1979 SC 154). In Muthu Koya's case, Fazal Ali, J. speaking for the court said: "... the Press Act does not recognise any other legal entity except the editor in so far as the responsibilities of that office are concerned. In Muthu Koya's case, Fazal Ali, J. speaking for the court said: "... the Press Act does not recognise any other legal entity except the editor in so far as the 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" "In the complaint, there is no averment that the Chief Editor was the person who selected the material for publication or that he was in any manner responsible for its publication. There is a vague assertion in Para.16 that the second accused as the Chief Editor and the other accused are chargeable for the offence. The broad assertion is too transparent, to stand scrutiny in the light of the law declared by the Supreme Court." The above statement does not have the effect of laying down the law that under no circumstance the Managing Editor or the Chief Editor can be made liable. The complaint against Chief Editor was quashed in exercise of the powers u/S 482 of the Code of Crl. Procedure, only on account of the absence of allegation that he was responsible for the selection of the materials for publication or that he was in any manner responsible for its publication. The above observation, according to me, cannot be taken as an authority for the proposition that whatever be the allegations in the complaint, the complaint cannot be proceeded with against the Chief Editor since the Chief Editor is not an authority contemplated by the Act. If the Chief Editor is made an accused only on account of his official capacity and there is no allegation that he was responsible for the selection of the material for publication or that he caused its publication, the complaint cannot be proceeded with against him. 7. The decision in 7957 (2) KLT 286 has been reversed by the Supreme Court in Criminal Appeal No. 282/88, Nalini v. K. M. Mathew (1988 (2) KLT S. N. 13, Case No. 21). The decision in Crl M. C. 917/86 does not also go to help the argument advanced by the learned Counsel appearing for the petitioner. In that case, Sankaran Nair, J, reiterated what was stated in 1987 (2) KLT 286. The decision in Crl M. C. 917/86 does not also go to help the argument advanced by the learned Counsel appearing for the petitioner. In that case, Sankaran Nair, J, reiterated what was stated in 1987 (2) KLT 286. The provisions contained in the Act imposes a statutory liability on the Editor for all the publications appearing in his paper or journal. That statutory liability extends only to the Editor. The presumption u/S. 7 of the Act is not applicable in the case of Managing Editor or Chief Editor. Their liability will depend on the part played by them in selecting the material and in publishing the same. In other words, their liability is based on the averments and proof in the case and not on account of the statutory presumption incorporated in the Act. 8. The complaints were on the basis of the materials published in two issues of Malayala Manorama, Calicut Edition. In that paper the person responsible for the publication was printed as "Printed and Published by Mammen Varghese at the M.M, Press, Calicut for the Malayala Manorama Co. Ltd., Kottayam. Managing Editor: Mammen Mathew, Chief Editor: K.M. Mathew" Sri Mammen Varghese satisfies the description of 'Editor' under the Act. He is the person responsible for the selection and publication of the material seen in the two issues. The presumption u/S. 7 of the Act is applicable to him. He cannot disown his liability. The petitioners herein are Managing Editor and Chief Editor. They are not covered by the presumption u/S. 7 of the Act. So, their liability depends on the averments made in the petition. If the complaints before court below did not contain any allegation making these petitioners responsible for the selection or publication of the material, then the proceedings against them cannot be allowed to be proceeded with. Original complaints filed before the court below have been brought down. Those complaints did not contain any averment making these petitioners responsible for the selection or publication of the alleged defamatory matters. A bald statement is made in the complaint that 4th accused collected the news items on the responsibility of all the four accused for publication. This averment is not at all sufficient to make the petitioners liable for the selection or publication of the alleged defamatory matters. 9. A bald statement is made in the complaint that 4th accused collected the news items on the responsibility of all the four accused for publication. This averment is not at all sufficient to make the petitioners liable for the selection or publication of the alleged defamatory matters. 9. According to Sri Vijayakumar, learned Counsel appearing for the respondent-complainant, this court is not only to look into the averments made in the complaint but also to the papers accompanying the same. It is submitted that the reply notice sent to the respondent, which was produced along with the complaint is also to be looked into for finding out whether a prima facie case is made out against the petitioners. In that reply notice which preceded the complaint, the counsel representing all the four accused stated: "the publication had been made based on reliable information collected by our clients relating to the Pooja conducted in the Instrumentation Ltd." This statement, according to counsel, would clinch the issue and establish the fact that the petitioners herein were aware of the publication of the defamatory matter, I do not agree with this contention. The publication was made in the Calicut Edition of the newspaper. The Editor of that Edition is accused No. 3. Fourth accused is the representative. The above quoted passage in the reply notice can have reference only to them. That statement cannot have the effect of attributing the petitioners herein with the responsibility of selecting the material and publishing the same. 10. Since the allegations made in the complaint do not bring out any offence against the petitioners herein, I quash the proceedings as against them. The court below is directed to proceed with the cases as against accused 3 and 4 only. 11. The Criminal M. Cs. are disposed of in the above terms.