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2006 DIGILAW 406 (PNJ)

Vivek Goenka v. Col. Ram Singh

2006-02-09

ADARSH KUMAR GOEL

body2006
Judgment Adarsh Kumar Goel, J. 1. This petition has been filed for quashing of order of summoning of the petitioner. 2. Respondent No. 1 filed a complaint, alleging, inter alia, that he was in Ex-Army Officer. He contested election to the Assembly in the year 1977. He was elected and became Education Minister in Haryana. He also served as Speaker of the Assembly. He was re-elected and became Transport Minister. In 1991, he was elected to Lok Sabha and also served as a Minister. He has two daughters - one was married to Andhiraj, a Commercial Pilot and other was a student. In the issue dated 12.3.1998 of Jansatta, a defamatory news item was published. The news item is as under :- "Jammu 11.3.1998. The approach of the State Chief Minister Farooq Abdulla of extending support of the BJP Govt. in the Centre may cause problems for United Front in the days to come. Like Chandrababu Naidu, Abdulla has not yet opened his cards. Sources say that Abdulla is ready to support the congress but he has not yet shut the doors for support to BJP. No leader of National Conference denies that the party can support the BJP in the Centre. In this respect, there us a statement given by the General Secretary, National Conference Sheikh Nazir to a Private TV Channel that National Conference will support the BJP to form Government. On the other hand, Lokshakti Leader, Ram Krishan Hegde and Samta Party Leader George Fernandes are also in touch with Farooq. It is of importance that both are very close friends of Farooq. Both leaders can play vital role in getting Farooq on the side of BJP. Even though, BJP has not formally contacted Farooq, the contact of Hegde and George is seen to be important, importance is being given to the visit of BJP leader Col. Ram Singh to Srinagar some days ago. This is despite the statement of National Conference that his visit was private and he had come to celebrate the victory of son-in-law Umar Farooq. According to information received, he has spoken to his Samadhi on behalf of BJP. According to sources in return for supporting the BJP, Farooq may demand a ministerial berth for his son Umar Farooq. It is also a possibility that National Conference may abstain during the vote of confidence. National Conference has won out of six J&K seats. According to information received, he has spoken to his Samadhi on behalf of BJP. According to sources in return for supporting the BJP, Farooq may demand a ministerial berth for his son Umar Farooq. It is also a possibility that National Conference may abstain during the vote of confidence. National Conference has won out of six J&K seats. Elections are yet to be held for two seats. The relations between BJP and No were never sweet. To this extent that in the State, BJPs politics is based on opposition to NC. The support that BJP has created for itself in the Jammu area of the State is importantly based upon opposition to NC". 3. The news item was false and baseless and it led people to believe that his daughter was married to a Muslim boy. This issue was linked to the religious feelings of the society and on account of the news item, the petitioner stood defamed in the eyes of public and community at large. 4. In the complaint, the petitioner was added as one of the accused and allegation made in para 5 of the complaint, is as under :- "That all the accused were fully aware that the complainant was not the father-in-law of Umar Farooq and that the daughter of the complainant has not married to Umar Farooq and the said news item had been published by the accused with the intention to harm and knowing that such imputation will lower the reputation of the complainant and his family". The petitioner was Managing Editor of Jansatta Newspaper, wherein the news item was published. 5 The trial Court summoned the petitioner after finding prima facie case against him, on the basis of complaint and statement made by the complainant on oath. The petitioner was Managing Editor of Jansatta Newspaper, wherein the news item was published. 5 The trial Court summoned the petitioner after finding prima facie case against him, on the basis of complaint and statement made by the complainant on oath. The relevant part of the statement is as under :- "The accused No. 1 is the correspondent of Jansatta in Jammu; Accused No. 2 Vivek Goenka is the Managing Editor of Jansatta, Accused No. 3 Sushil Goenka is the printer and publisher of this newspaper who have without proper satisfaction irresponsibly deliberately without sufficient evidence and without complete investigation with a view to defame me and my family in the society and the caste and with a view to ruin my political career have published the said news item, there has been defamation of me and my family and among my relatives, friends and society my image has suffered". 6. The petitioner applied for quashing to this Court. This Court disposed of the petition on 9.11.2001 with a direction to decide application of the petitioner for discharge. The said application has been decided vide impugned order dated 11.6.2002. It was held that the complainant had specifically mentioned that the news item was published by the accused with an intention and knowledge that the imputation will harm the reputation of the complainant and the said imputation lowered the reputation of the complainant and his family. Relevant observations are quoted below :- "Name of the applicant Vivek Goenka was mentioned in the newspaper in compliance to the rule 5(1) of the Act as managing editor which shows his involvement and responsibility for the printing and selection of the news. The Court has summoned his vide order, Accused No. 2 after carefully examination of preliminary evidence. Thus, no ground is made out to drop the proceedings against the accused Vivek Goenka. The application for dropping of proceedings against him is dismissed". 7. The Court has summoned his vide order, Accused No. 2 after carefully examination of preliminary evidence. Thus, no ground is made out to drop the proceedings against the accused Vivek Goenka. The application for dropping of proceedings against him is dismissed". 7. Learned counsel for the petitioner submitted that there was no basis for summoning of the petitioner, as the complainant based his allegation only on the basis that the petitioner was Managing Editor and on account of that, he got the news item published with an intention and knowledge of harming the reputation of the complainant, while infact, the inference of knowledge or intention of publishing any false news item could be inferred against the Editor whose responsibility was to select the material to be published or of the Printer or Publisher and not of the Managing Editor, who was managing the affairs of the newspaper generally. Reference was made to the provisions of the Press and Registration of Books Act, 1867 (for short, the Act). Under Section 7 of the Act, there is a presumption that an Editor whose name is printed in the newspaper as Editor shall be held to be the Editor of the said newspaper and responsible in civil or criminal proceedings. The term Editor has been defined in Section 1(1) of the Act as the person who controls the selection of the matter that is published in a newspaper. It was submitted that while Editor/Printer/Publisher may be liable to be proceeded against straightway, Managing Editor, Chief Editor or Resident Editor could be proceeded against only on specific allegations or such a person having knowledge of alleged defamatory matter. Mere attributing such knowledge in the complaint without indicating any basis thereof, was not enough and in absence of any other basis being indicated, it must be taken that the complainant named such persons only on account of their official capacity. Otherwise, summoning of such a person will become an instrument of oppression or needless harassment. Managing Editor at the Head Office may not have information about all the publications and all the material which is published and if such a knowledge is imputed on the basis of allegations made by drawing an inference from his official capacity, this will result in grave injustice. 8. Managing Editor at the Head Office may not have information about all the publications and all the material which is published and if such a knowledge is imputed on the basis of allegations made by drawing an inference from his official capacity, this will result in grave injustice. 8. Learned counsel for the complainant relied upon judgment of the Honble Supreme Court in K.M. Mathew v. K.A. Abraham and others, 2002(4) RCR(Criminal) 288 : (2002)6 SCC 670, wherein similar contention was considered in paras 15 and 16 and it was held that since there was specific allegation by the complainant in the complaint that the appellant had knowledge of the publication of the defamatory matter and Magistrate had taken cognizance and the Editor had not come forward to take responsibility for selecting and publishing the alleged defamatory matter, complainant would be without any remedy to redress his grievance, if proceedings were quashed. It was also observed that availability of power under Section 319 of the Code of Criminal Procedure was not enough to quash proceedings. 9. Learned counsel for the petitioner, however, sought to distinguish the said judgment by submitting that in that case, there was enough material, though the same has not been indicated in the judgment. 10. Learned counsel for the complainant submitted that the matter has to be gone into during evidence and since such matter had been published, which was of defamatory nature and the averments were specifically made against the petitioner, the petitioner could not be discharged at this stage and in any case, since the trial Court had examined the matter and found material against the petitioner, interference in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure will not be justified. 11. I have considered the rival submissions. Question is whether Managing Editor has no responsibility for publishing libellous matter in his newspaper on the ground that knowledge of such a publication can be attributed only to Editor. 12. The same issue has been gone into by the Honble Supreme Court in K.M. Mathew (supra). In para 16 of the said judgment, it was observed : "The contention of these appellants is not tenable. There is no statutory immunity for the Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. In para 16 of the said judgment, it was observed : "The contention of these appellants is not tenable. There is no statutory immunity for the Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. In all these cases, the complainants have specifically alleged that these appellants had knowledge of the publication of the alleged defamatory matter and they were responsible for such publication; and the Magistrates who had taken cognizance of the offence held that there was prima facie case against these appellants". 13. Referring to earlier Supreme Court judgment in State of Maharashtra v. Dr. R.B. Chowdhari, AIR 1968 SC 110, wherein the Editor had specifically admitted that he had written the defamatory article, and in that situation, the Editorial Board was discharged, it was observed : "...... Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item....." 14. It was further observed that power under Section 482 of the Code of Criminal Procedure should be exercised sparingly and cautiously, as held in State of Bihar v. Rajendra Agrawala, 1996(1) RCR(Criminal) 530 : (1996)8 SCC 164 and Santosh De v. Archna Guha, 1995(3) RCR(Criminal) 431 : (1994)2 SCC 420. 15. Learned counsel for the petitioner also referred to judgment of the Honble Supreme Court in K.P.G. Nair v. Jindal Menthol India Limited, (2001)10 SCC 218, wherein, in absence of express averments against a particular Director being incharge of and responsible to the company, it was held that summoning was not justified under Section 141 of the Negotiable Instruments Act, 1881. The said judgment has no application to the present case. 16. In the present case, the Editor has not come forward to own the responsibility for the publication. The petitioner is Managing Editor. Even if no presumption arises under Section 7 of the Act, knowledge of the petitioner is a fact to be gone into. He has no statutory immunity against prosecution for alleged publication. It cannot be held that he has no control over the publication. The complainant has attributed knowledge to him specifically. The learned trial Magistrate has held that there was prima facie case against the petitioner. He has no statutory immunity against prosecution for alleged publication. It cannot be held that he has no control over the publication. The complainant has attributed knowledge to him specifically. The learned trial Magistrate has held that there was prima facie case against the petitioner. Power of quashing can be exercised sparingly. The complainant cannot be deprived of opportunity to prove that the petitioner had the knowledge of the defamatory publication. At this stage, it cannot be held that the petitioner had no responsibility for publication on the ground that such knowledge could be attributed only to the Editor. 17. No ground is, thus, made out for quashing at this stage. 18. It is, however, made clear that the petitioner will be at liberty to seek exemption from personal appearance and the trial Court will grant such exemption, on such conditions as may be considered appropriate, having regard to law laid down by the Honble Supreme Court in M/s Bhaskar Industries Ltd. v. M/s Bhiwani Denim and Apparels Ltd. and others, 2001(4) RCR(Criminal) 137 : AIR 2001 SC 3625. 19. The petition is disposed of.