Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 173 (JK)

Anand Soondas v. Afroza Qadir & Anr.

2012-04-20

MOHAMMAD YAQOOB MIR

body2012
1. Complaint captioned Afroza Qadir v. Balraj Arora & ors has been filed before the Court of Chief Judicial Magistrate, Srinagar, in support whereof, statement of the complainant and one witness has been recorded. On recording satisfaction about the existence of ground for proceeding against the accused for commission of offences punishable under Section 499,500, 501 and 502 RFC, process has been issued. Aggrieved therefore, revision petition was filed titled Balraj Arora & ors. v. Afroza Qadir, same has been dismissed by the Court of 2nd Additional Sessions Judge, Srinagar, vide detailed order dated 18.6.2011. 2. Petitioner (accused No. 2) projects that the issue of process as against him is abuse of process of the court because nothing in the complaint is attributable against him nor at the relevant time he was associated with the daily newspaper Times of India, Chandigarh. 3. "Editor" is defined in Section 1(i) of the Press and Registration of Books Act, 1867 to mean "the person who controls the selection of the matter that is published in a newspaper." In terms of Section 3 of said Act, every book or paper printed within India shall have printed legibly on it the name of the printer, the place of printing, the name of the publisher and the place of publication. Then Section 5(1) of the said Act, provides that without prejudice to the provisions of Section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also date of its publication. 4. In terms of Section 7 of the Act, in any legal proceedings whatever, as well as civil and criminal, in the case of the editor, a copy of the newspaper containing name printed on it as that of the editor, shall be held to be sufficient evidence as against the person whose name shall be subscribed to such declaration or printed on such newspaper. 5. In the alleged defamatory publication as has appeared in daily newspaper Times of India, Delhi dated 16th of May, 2008, it is printed as "Editor (Delhi Market): Arindam Sen Gupta-responsible for selection of news under PRB Act", which indicates that on the relevant date petitioner was not associated with the newspaper whereas the petitioner got associated with the newspaper Time of India, Chandigarh as Editor with effect from 1.1.2009. Same position is clear from the newspaper Time of India, Chandigarh dated January 1,2009, wherein name of the Editor is recorded and is printed as under: "Editor (Chandigarh Market) Anand Soondas-responsible for selection of news in PRP Act". 6. Learned counsel for the petitioner would contend that when at the relevant date i.e. 16.5.2008 i.e. the date of alleged defamatory publication, petitioner was not associated with the Times of India, nothing could be attributed to the petitioner. Magistrate while issuing the process has not considered the same, therefore, issue of process is abuse of the process of the court which is to result in miscarriage of justice. 7. The submission on the face of it, in view of the stated position, has logic. When petitioner, in view of the admitted facts, was not associated with Times of India, Delhi at the relevant point of time, how he could be connected with the commission of offence. The position is more supported by the allegations as contained in the complaint as in the complaint it is nowhere alleged that the petitioner was responsible for selection of the news (defamatory publication). 8. When learned counsel, Mr. Gadda, appearing for the respondent No. 2 was confronted with the same, he contended that since revision petition has been dismissed, same has not been, challenged, therefore, it is not open for the petitioner to question the cognizance taken and process issued by the trial court. 9. Controverting this submission, learned counsel for the petitioner rightly contended that in the petition he has prayed for quashing of complaint, order of cognizance and the consequent proceedings. 10. Section 561-A Cr. P.C clothes the Court with an inherent power so as to ensure securing of ends of justice and to prevent abuse of process of the court. Such power can be invoked suo moto as well, however, has to be exercised rarely with circumspection. 11. Present case is an exceptional one which warrants exercise of such power because on the strength of the material as was placed before the trial court no allegation is forthcoming as against the petitioner and the petitioner could appear before the Magistrate and to seek dropping of the proceedings against him but when he filed the revision, same plea was not accepted, therefore, he had no option but to invoke powers of this Court under Section 561-A Cr. P. C, rightly so because to allow the proceedings against the petitioner in the backdrop of the afore-stated circumstances would be total abuse of the process of the court. Order of dismissal of the revision is not challenged but same does not operate as bar for examining the question of abuse of process of the court by invoking inherent powers. 12. Learned counsel, while relying on the judgment K.M. Mathew v. State of Kerala ( AIR 1992 SC 2206 ), rightly pointed out that when the petitioner would enter appearance in response to the summons, it is only on the allegations contained in the complaint Magistrate can proceed with the trial but when there is no allegation and instead position is made clear by the petitioner about his non-involvement, Magistrate shall have to drop proceedings against him. 13. In the reported judgment it has been held as under: "When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused." Further it has been held: "Section 7 raises the presumption in respect of a person who is named the Editor and printed as such on every copy of the newspaper. The Act does not recognize any legal entity for raising presumption...." 14. In the instant case, name of the petitioner is not printed as editor on the copy of the newspaper dated 16.5.2008, therefore, even presumption under Section 7 cannot be raised against the petitioner. 15. While summing up, to ask the petitioner to undergo trial would be travesty of justice which is impermissible, therefore, the proceedings and consequent process issued by the trial court vide order dated 16.7.2010, in so far it pertains to the petitioner, shall stand dropped. The trial, as such, may proceed only against other accused in accordance with law. 16. Copy of the order be send to the trial court for information.