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2008 DIGILAW 1027 (BOM)

SHEKHAR GUPTA v. STATE OF MAHARASHTRA

2008-07-18

V.R.KINGAONKAR

body2008
JUDGMENT:- This is an application filed under section 482 of the Criminal Procedure Code. 2. The applicant impugns order of process issued against him in a private complaint case (Cri. Case No. 173/S/95). 3. The applicant is Executive Managing Editor of the newspaper "Indian Express" which is published by Indian Express Group. A complaint was lodged by respondent No. 2 in respect of news items published in "Indian Express" Bombay Edition on 3-11-1995 and 16-11-1995. These news items are published under titles "Revolvers missing from Excise office resurface" and "Stolen arms resurfacing at excise office: Police all set to nab culprits under Tada". The complaint is lodged by the respondent No. 2 for offence punishable under sections 500, 50 I and 502 read with section 34 of the Indian Penal Code against six (6) accused persons including the present applicant, who is shown as accused No. 3 and is described as Executive Editor of the Indian Express Newspaper Limited. The learned Magistrate issued process against all the accused after the complaint was verified. 4. Shorn of unessentials, the case of applicant is that he is not responsible for the publication of the news items in question being the Executive Managing Editor. He asserts that presumption available under section 7 of the Press and Registration of Books Act, 1867 is not applicable to his case. He would submit that the complaint does not disclose any particular overact on his part. He could not be roped in the complaint and the process should not have been issued against him. He asserts that in view of K.M. Mathew VS. State of Kerala. AIR 1992 SC 2206 , he is entitled to seek immunity from issuance of process in the context of news items published in the newspaper. He, therefore, urged to quash the impugned order to the extent of issuance of process against him. 5. Heard learned advocates for the parties and learned A.P.P. 6. Before proceed to consider merits of the application, it may be useful to refer the relevant averments made in the complaint insofar as liability of the Publisher, Editor and others is concerned. The complainant alleges that the imputations as made in the news reports are published without lawful justification and are per se defamatory. It is alleged: "The accused Nos. Before proceed to consider merits of the application, it may be useful to refer the relevant averments made in the complaint insofar as liability of the Publisher, Editor and others is concerned. The complainant alleges that the imputations as made in the news reports are published without lawful justification and are per se defamatory. It is alleged: "The accused Nos. I to 6 have failed to take due care and caution before making the defamatory imputations thereby directly and indirectly involving the complainant and posing him as a person responsible for theft of Revolvers and Cartridges and also of the file and expression of suspicion also has got the same effect on the mind of the persons i.e. an ordinary reader to whom such suspicion is communicated as an accusation would have, because of which the identity is established." 7. The complainant has not specified the averments as regards responsibility of the applicant in the context of publication of the news items in the daily newspaper. The complaint shows omnibus statement to the effect that the accused Nos. I to 6 have published the said news items with common intention to defame the complainant and lowered down his prestige and reputation in the eyes of public. No specific role is attributed to the applicant. He is not the Newspaper Reporter or Editor-in-Chief. 8. Mr. Gangapurwala, would submit that the process has been issued against the applicant without ascertaining whether he is vicariously liable for publication of the news items in question. He would further submit that without there being responsibility of the applicant, in the eye of law, regarding such publications, no process could be issued against him. He mainly relies on K.M. Mathew vs. State of Kerala, AIR 1992 SC 2206 . The Apex Court, in the given case, observed: "..... Section 7 has no applicability for a person who is simply named as 'Chief Editor'. The presumption under section 7 is only against the person whose name is printed as 'Editor' as required under section 5(1). There is a mandatory (though rebut table) 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 Act defines' Editor' to mean the person who controls the selection of the matter that is published in a newspaper'. There is a mandatory (though rebut table) 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 Act defines' Editor' to mean the person who controls the selection of the matter that is published in a newspaper'. Section 7 raises the presumption in respect of a person who is named Editor and printed as such on every copy of the newspaper. The Act does not recognize any other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him under section 7 of the Act. It is important to state that for the Magistrate to take cognizance of the offence against the Chief Editor, there must be positive averments in the complaint of the knowledge of the objectionable character of the matter. In absence of any positive averments against the 'Chief Editor' 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 trial of the case merely on the ground of issuance of process would be oppressive.... " 9. Section 7 of the Press and Registration of Books Act, 1867 provides for presumption as regards vicarious liability of the persons whose name appeared in the declaration printed on the newspaper itself. Unless a person is concerned with publication of news items, being Editor or Sub-Editor, as the case may be, it is difficult to fasten criminal liability on the person named as Executive Managing Editor. Normally, the Executive Managing Editor is required to supervise the administrative work and manage the affairs related to running of the Organisation. The designation of the applicant as Executive Managing Editor will not per se warrant an inference that he was, in any way, responsible for the selection of the news items in question. The applicant has no personal animosity against the complainant. Nor there is such averment in the complaint. There is no shred of evidence on record to warrant an inference of guilty intention and knowledge on part of the present applicant. The applicant has no personal animosity against the complainant. Nor there is such averment in the complaint. There is no shred of evidence on record to warrant an inference of guilty intention and knowledge on part of the present applicant. The verified statement of the complainant purports to show that he did not state anything about role of the applicant and his vicarious liability in the publication of the alleged defamatory news items. 10. In similar fact situation, relying upon K.M. Mathew vs. State of Kerala (supra), Karnataka High Court in Prabhu Chawla and others vs. A.U. Sheriff. 1995 Cri.L.J. 1922, held that in the absence of positive averments against the petitioners therein, who were described as "Executive Editor", "Managing Editor" and "Residential Editor" and in the absence of presumption available under section 7 of the Press and Registration of Books Act (25 of 1867), the process could not have been issued by the Magistrate for offence under section 500 of the Indian Penal Code. It was held that to ask the Executive Editor, Managing Editor and Residential Editor to undergo the trial because of issuing process against them would be oppressive. Therefore, the order of issuance of process was quashed. With due respect, I am in agreement with the view taken by the learned Single Judge of the Karnataka High Court. The same is the fact situation obtained in the present case. There cannot be any presumption about vicarious liability of the applicant who is described as "Executive Managing Editor". 11. The Apex Court in Haji C. H Mohammad Koya vs. T.K.S.M.A. Muthukoya, A1R 1979 SC 154, held that presumption under section 7 of the Press and Registration of Books Act, 1867 is not applicable to Chief Editor of Newspaper who is not shown to be its Editor as defined in section 1(1). 12. Faced with the difficulty mentioned above, learned advocate Mr. Padalkar, appearing for respondent No.2 invited my attention to case of V.K. Jain and others vs. Pratap V. Padode and another, 2005 (3) Mh.L.J. 778 . A Single Bench of this Court held that when alternate efficacious remedy of revision is available under section 397 of the Criminal Procedure Code, 1973, ordinarily, application under section 482 of the Code should not be entertained. A Single Bench of this Court held that when alternate efficacious remedy of revision is available under section 397 of the Criminal Procedure Code, 1973, ordinarily, application under section 482 of the Code should not be entertained. The ratio of decision in the case of V. K. Jain (supra) is not that remedy available under section 397 of the Criminal Procedure Code affects or takes away power of this Court under section 482 of the Code. What has been observed and held in the given case is that if a remedy under section 397 is available and is not availed of, normally, a petition under Article 227 of the Constitution or an application under section 482 of the Criminal Procedure Code will not be entertained. The bar of alternative remedy is a self-imposed restriction. The observations in V.K. Jain (supra) do not lay down principle of law that in all cases, the application under section 482 of the Criminal Procedure Code or petition under Article 227 of the Constitution would not be maintainable. Moreover, these observations in V.K. Jain case are rendered in view of Adalat Prasad vs. Rooplal Jindal and others, 2004(4) Mh.L.J. (SC) 274 = 2004 All MR (Cri.) 3131. 13. In Adalat Prasad vs. Rooplal Jindal and others (supra), the Apex Court held that the Magistrate cannot recall the process. It is observed: "Hence, in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in section 482 of the Code." The Apex Court clearly observed that remedy under section 482 of the Criminal Procedure Code is not barred in such a case. 14. The Apex Court in Municipal Corporation of Delhi YS. Ram Kishan Rohtagi and others, AIR 1983 SC 67 , succinctly defined parameters pertaining to the remedy available under section 397(2) and 482 of the Criminal Procedure Code. The Apex Court observed that it may be that in some cases they may be overlapping but such cases would be few and far between. The remedies available under section 397(2) and section 482 of the Criminal Procedure Code may be, therefore, available and the provisions may appear to be overlapping in some respect, but these remedies are not mutually exclusive of one another. 15. In the context of maintainability of such application, dictum in Rajendra Kumar Sitaram Pande and others YS. The remedies available under section 397(2) and section 482 of the Criminal Procedure Code may be, therefore, available and the provisions may appear to be overlapping in some respect, but these remedies are not mutually exclusive of one another. 15. In the context of maintainability of such application, dictum in Rajendra Kumar Sitaram Pande and others YS. Uttam and another, 1999(2) Mh.L.J. (SC) 118 = AIR 1999 SC 1028 may be usefully referred. The Apex Court held that where the allegation in the complaint was that the accused persons had made a report to the Superior Officer of the complainant alleging that he had abused the Treasury Officer in a drunken state, the case was covered by Exception 8 to section 499 of the Indian Penal Code. So, no case of defamation was made out. The Apex Court further observed: "In this view of the matter, requiring the accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of Justice. On the other hand in our considered opinion this is a fit case for quashing the order of issuance of process and the proceedings itself." 16. In M/s Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, 1998(1) Mh.L.J. (SC) 599 = AIR 1998 SC 128, the Apex Court made it clear that it is the duty of the Magistrate to examine the nature of allegation made in the complaint and the evidence both, oral and documentary, in support thereof and to see if it is sufficient for the complainant to succeed in bringing charge home to the accused. The Apex Court further observed that summoning the accused in a criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. Needless to say, objection regarding maintainability of the application is devoid of force and hence is rejected. 17. To conclude, it may be stated that the process cannot be issued without ascertaining criminal liability of the person against whom averments are made in the complaint. Unless the averments are clear enough to call upon a person to face the criminal trial, the issuance of process would amount to abuse of the process of the Court. In this view of the matter, the application will have to be allowed. 18. Unless the averments are clear enough to call upon a person to face the criminal trial, the issuance of process would amount to abuse of the process of the Court. In this view of the matter, the application will have to be allowed. 18. In the result, the application is allowed, the impugned order rendered by learned Magistrate calling upon the applicant to face the criminal prosecution in Criminal Case No.1 73/5/95 is quashed. Application allowed.