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2012 DIGILAW 782 (PAT)

Haribansh v. State of Bihar

2012-05-14

ASHWANI KUMAR SINGH

body2012
Ashwani Kumar Singh, J. – Heard Mr. Partha Sarthy, learned counsel for the petitioner and Mr. Aslam Ansari, learned A.P.P. appearing on behalf of the State. Inspite of repeated calls no one appeared on behalf of the opposite party no.2. 2. The petitioner has prayed for quashing of the order dated 11.3.2003 passed by Sri K.P. Rana, the learned Judicial Magistrate, 1st Class, Samastipur in Complaint Case No. 99 of 2003 whereby finding a prima facie case to be made out under Sections 500, 504, 506 and 509 of the Indian Penal Code he has summoned the accused persons named in the complaint including the petitioner to face trial. 3. The case was initiated on the basis of a complaint filed by Chanda Devi (opposite party no.2) on 3.2.2003 stating inter alia therein that she is wife of Sri Yogi Sah of village Chando Patti and she has one son and seven daughters from her husband besides several grand children. She has filed a case against Arjun Sah (accused no.5 in the complaint) which is pending before Sri S.K. Singh, the learned Judicial Magistrate, 1st Class, Samastipur and the same was sent to the local police. It is alleged that because of this reason accused no.5 Arjun Sah got published a false news through accused nos.2 and 3, namely, Hari Ram Chaudhary and Krishna Kumar Paswan in the Hindi daily 'Prabhat Khabar' on 17.1.2002 against the complainant and her husband, thus, bringing into disrepute her character. 4. It has further been alleged that the petitioner, who is accused no.1 in the case being Chief Editor of the said Hindi daily got falsely published on 17.1.2002 that the complainant has solemnized marriage with one Shambhu Kumar Karan at Thaneshwar Mandir during the life time of her first husband. It is stated in the complaint that publication of incorrect, derogatory and defamatory news brought the image of the complainant and her family in disrepute in the society. The news item was authored, edited, published and printed without verification of truth of the allegation which were totally false and baseless. 5. After institution of the complaint, the statement of the complainant was recorded on oath on 11.2.2003. Subsequently, four witnesses namely, Mintu Kumari, Yogi Sah, Pappu Paswan and Rinku Devi were examined on different dates in course of inquiry under Section 202 of the Code of Criminal Procedure. 6. 5. After institution of the complaint, the statement of the complainant was recorded on oath on 11.2.2003. Subsequently, four witnesses namely, Mintu Kumari, Yogi Sah, Pappu Paswan and Rinku Devi were examined on different dates in course of inquiry under Section 202 of the Code of Criminal Procedure. 6. The learned Magistrate after recording the statement of the complainant and examination of the witnesses by order dated 11.3.2003 took cognizance of the offence and summoned the accused persons including the petitioner to face trial. 7. It is submitted on behalf of the petitioner that from perusal of the complaint itself it would transpire that the petitioner is the Chief Editor of the news paper 'Prabhat Khabar'. It is pointed out that he is working in the said capacity since 1996 and his offence is situated at Ranchi which is head office of Hindi daily 'Prabhat Khabar'. The news item in question dated 17.1.2002 published in the said news paper has been brought on record and marked as annexure-8 to the petition. The photo copy of the relevant page of the said Hindi daily is also brought on record as annexure-9 to the petition which shows place of printing, name of the company, name of the publisher and printer, name of the Chief Editor and name of the Editor Incharge as per the provision of Sections 3, 5 and 7 of the Press and Registration of Books Act, 1867 (hereinafter to be referred to as 'the Act'). 8. It is submitted that it would be apparent from annexure-9 that it has categorically been mentioned in the newspaper that the Editor Incharge Raghvendra would be responsible for selection of the news in accordance with the Act. It is also pointed out that the said newspaper is published from seven different places in three States with seven editors, namely, Ranchi, Patna, Deoghar, Dhanbad, Jamshedpur, Kolkata and Silliguri and the head office is situated at Ranchi. For different editions of the newspaper, there is Resident Editor/Editor Incharge for selection of news item from the local reporters. The local reporters collect the news and submit before the Resident Editor/Editor Incharge who selects the news items and publish them in their respective editions of the newspaper. For different editions of the newspaper, there is Resident Editor/Editor Incharge for selection of news item from the local reporters. The local reporters collect the news and submit before the Resident Editor/Editor Incharge who selects the news items and publish them in their respective editions of the newspaper. The Chief Editor is the head of all the Resident Editors/Editor Incharge of all the editions and he is not concerned with the selection and collection of news items for publication in the news paper. 9. It is submitted that under Section 1 of the Press and Registration of Books Act, 1867, Editor is defined as the person who controls the selection of the matter i.e. published in the newspaper but the petitioner is not an Editor. He is head of the Resident Editors of all the editions. On the date of publication of a defamatory news item the co-accused Hare Ram Chaudhary and Krishna Kumar Paswan were reporters at Samastipur for 'Prabhat Khabar' and Mr. Raghvendra was Editor Incharge of the said news paper. Thus, they would be responsible for selection of the matter which was published in the newspaper and is alleged to be defamatory. 10. Learned counsel submits that in view of Section 7 of the Act there could have been no presumption as against the petitioner. Section 7 of the Act reads as follows: – "7. In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some court empowered by this Act to have the custody of such declarations [or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the Editor] shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, [or, printed on such newspaper, as the case may be] that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every [newspaper] whereof the title shall correspond with the title of the [newspaper] mentioned in the declaration [or the editor of every portion of that issue of the newspaper of which a copy is produced]." 11. The object of Section 7 of the Act is two fold: – (a) To regulate printing presses and newspapers in order to preserve copies of newspapers and books. (b) To avoid multiplicity of suits and uncertainties of Liabilities, by choosing one of the persons from the staff to make him liable for all the matters published in the paper, so that any person aggrieved may sue only the person so named, without having to make a roving enquiry about persons who may have been individually responsible for the offending matters published in the paper. 12. This Section raises a presumption that the person whose name is printed as 'Editor' is the editor of every portion of that issue. The person, whose name is printed in the newspaper as Editor, is liable for any defamatory matter published in the newspaper under the Penal Code under which the maker or the publisher of defamatory matter is liable. 13. In the present case from perusal of the complaint it would transpire that the allegation is that accused no.4 and 5 got a false news published in the newspaper through accused no.2 and 3. So far as the petitioner is concerned, it is alleged that he got the news published on 17.1.2002 in the press of which he is Chief Editor. Besides this no other allegation has been made against him. 14. In support of his submissions, learned counsel for the petitioner placed his reliance on a judgment of the Apex Court in the case of K.M. Mathew vs. State of Kerala since reported in A.I.R. 1992 SC 2206. He draws my attention to paragraphs 9 and 10 of the aforesaid judgment which reads as under: – "9. In the instant case there is no averment against the Chief Editor except the motive attributed to him. Even the motive alleged is general and vague. The complainant seems to rely upon the presumption under S.7 of the Press and Registration of Books Act, 1867 ('the Act'). But S.7 of the Act has no applicability for a person who is simply named as 'Chief Editor'. The presumption under S.7 is only against the person whose name is printed as 'Editor' as required under S. 5(1). The complainant seems to rely upon the presumption under S.7 of the Press and Registration of Books Act, 1867 ('the Act'). But S.7 of the Act has no applicability for a person who is simply named as 'Chief Editor'. The presumption under S.7 is only against the person whose name is printed as 'Editor' as required under S. 5(1). There is a mandatory (though rebuttable) 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 as the Editor and printed as such on every copy of the newspaper. The Act does not recognise 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 S. 7 of the Act. 10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, 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 the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside." 15. Thus, considering the allegation made in the complaint as also in view of the judgment of the Apex Court referred to above it would be evident that Section 7 of the Act had no application in the case of the petitioner who was simply named as a Chief Editor. 16. The judgment of the Apex Court relied upon by the learned counsel for the petitioner squarely covers the case of the petitioner. 16. The judgment of the Apex Court relied upon by the learned counsel for the petitioner squarely covers the case of the petitioner. Having found so, it would be a gross abuse of the process of court if the impugned order is allowed to continue. 17. In the result, this application is allowed. The order dated 11.3.2003 passed by Sri K.P. Rana, the learned Judicial Magistrate 1st Class, Samastipur in Complaint Case No. 99 of 2003, so far as the petitioner is concerned, is hereby quashed.